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Garware Polyester Limited & Another Vs. Union of India & Others | refund. The proceedings regarding the refund cannot be said to have been concluded or terminated unless the amount repayable as refund is actually paid without any reservation by the department. It would not attain finality to the act of refund unless the actual payment is made unconditionally. Indeed, otherwise the purpose is made unconditionally. Indeed, otherwise the purpose behind the amended Section 11B would be defeated. It is also apparent that the concept of finality or termination of the refund proceedings has been clarified by the judicial pronouncements bearing in mind that it is necessary to put an end to those cases wherein refund has already been paid prior to coming into force of Section 11B and in those cases they should not be allowed to be re-opened. Otherwise, it would have led to a chaotic situation resulting in harassment and great prejudice to the manufacturers.14. In ITC Limiteds case, the contention of the company was that under a mistake of law regarding the true interpretation of Section 4(a) of the said Act, it had cleared its product and had paid excess excise duty under the impression that the price charged by the wholesale dealers to the secondary wholesalers would from the correct basis of assessment and not the price at which the goods were sold to the wholesale dealers. Two application pertaining to the period from 1-9-1976 to 28-5-1971 and 1-6-1971 to 19-2-1972 involving refund of Rs.23,68,686.85 and Rs.26,21,356.16 respectively came to be filed along with three other applications relating to the period from 20-2-1972 to 28-2-1973. All the five applications were rejected by the Assistant Collector by his order dated 9-10-1973. In the appeals preferred by the company, the Collector (Appeals) allowed the appeals by order dated 30-2-1975 in relation to three revision applications pertaining to the period 20-2-1972 to 28-2-1973 granting consequent relief in favour of the company directing refund of the excess excise duty. While rejecting the other two applications on the ground of bar of limitation. The company filed Writ Petition No.971 of 1976 against the order of rejection of the appeals and the Division Bench of the Delhi High Court considering that on account of mistake of law excess excise duty was paid by the company and received by the department, held that the Government was under legal obligation to return the same to the company and, therefore, while allowing the petition ordered that the company could not be non-suited on the ground of limitation and therefore set aside the orders of the Collector (Appeals) as well as of the Assistant Collector, and directed refund of sum of Rs.49,90,043,01 to the company which was to be made within a period of six months from the date of the judgment i.e., from 12-4-1982. The department preferred S.L.P. which was granted and upon hearing the appeal, the Apex Court while dealing with the points raised on the basis of applicability of Section 11B, as amended, held that:-"The thrust of the amendment vide Section 11B(2) of the Act is that the refund of duty paid by the manufacturer can be allowed, if due, only in cases where the assessee has not passed on the incidence of such duty to any other person."It was further held that:-"Under Section 11B(3) (supra) no refund shall be made except as provided for in sub-section (2), as amended, notwithstanding anything to the contrary contained in any judgment, order or direction of the Appellate Tribunal or any court or in any other provisions of the Act or the Rules made thereunder or under any other law for the time being in force."The Apex Court relying upon the decision in Jain Spinners case rejected the plea raised on behalf of the company that the prohibition contained in Section 11B(3) of the Act would not apply to the facts and circumstances of that case, more so because the judgment and order of the High Court directing refund was pending final adjudication by the Apex Court when the amended provision of Section 11B(3) of the Act had come into force with effect from 20-9-1991 and ruled that All pending claims for refund on or before 20-9-1991, are required to be dealt with and disposed of only in accordance with the amended provisions of law, by reason of the amended Section 11B(3) and the present case is no exception."15. Reverting to the facts of the case, as already observed above, in the case in hand, undoubtedly the High Court on the basis that the process of metallising or lacquering of the already manufactured polyester films does not amount to manufacture under the said Act had allowed the Writ Petition No.3040 of 1982 by its judgment dated 7-12-1990 and therefore it directed refund of the excess duty paid by the petitioners during the relevant period. There was no conclusive termination of the proceedings relating to the refund consequent to the said order, on the day when the provisions of the amended Section 11B had come into force. Undisputedly, the refund was not granted till the said day. Neither the issue regarding unjust enrichment was finally and conclusively adjudicated. Applying the law laid down by the Apex Court in the matters of Jain Spinners, ITC Limited and Mafatlal Industries to the facts of the case in hand, it would therefore be apparent that the claim for refund at the instance of the petitioners were still pending on the day when the provisions of the amended Section 11B came into force and therefore the authorities were perfectly justified in issuing the show cause notice in terms of Section 11B(3) of the said Act.16. Bearing in mind the law laid down by the Apex Court in Jain Spinners, ITC Limited and Mafatlal Industries, all the objections sought to be raised on behalf of the petitioners are without substance and no fault can be found with order rejecting the refund claim in question as the same is in consonance with the law laid down by the Apex Court in the said decisions. | 0[ds]12. The analysis of the facts of the decision in Jain Spinners case and the ruling by the Apex Court therein clearly disclose that it was in relation to the excise duty payable by the assessee which was assessed by the Assistant Collector onand the amount payable thereunder was paid by thein the year 1986 which was held to be refundable to the company by order datedand this order ofhad attained finality the prior to coming into force of the amended provision of Section 11B of the said Act. Even the application for refund in accordance with the said order of the Collector (Appeal) was filed by the company onTaking note of all these facts, as already observed above. The Apex Court in no uncertain terms held that The High Courts order ofunder which alone the refund was claimed could not be an exception to the said provisions nor could the High Court have made such order afterdirecting the payment contrary to the said provisions. and further held the order ofto be wholly unwarranted and band inApex Court relying upon the decision in Jain Spinners case rejected the plea raised on behalf of the company that the prohibition contained in Section 11B(3) of the Act would not apply to the facts and circumstances of that case, more so because the judgment and order of the High Court directing refund was pending final adjudication by the Apex Court when the amended provision of Section 11B(3) of the Act had come into force with effect fromand ruled that All pending claims for refund on or beforeare required to be dealt with and disposed of only in accordance with the amended provisions of law, by reason of the amended Section 11B(3) and the present case is no exception."15. Reverting to the facts of the case, as already observed above, in the case in hand, undoubtedly the High Court on the basis that the process of metallising or lacquering of the already manufactured polyester films does not amount to manufacture under the said Act had allowed the Writ Petition No.3040 of 1982 by its judgment datedand therefore it directed refund of the excess duty paid by the petitioners during the relevant period. There was no conclusive termination of the proceedings relating to the refund consequent to the said order, on the day when the provisions of the amended Section 11B had come into force. Undisputedly, the refund was not granted till the said day. Neither the issue regarding unjust enrichment was finally and conclusively adjudicated. Applying the law laid down by the Apex Court in the matters of Jain Spinners, ITC Limited and Mafatlal Industries to the facts of the case in hand, it would therefore be apparent that the claim for refund at the instance of the petitioners were still pending on the day when the provisions of the amended Section 11B came into force and therefore the authorities were perfectly justified in issuing the show cause notice in terms of Section 11B(3) of the said Act.16. Bearing in mind the law laid down by the Apex Court in Jain Spinners, ITC Limited and Mafatlal Industries, all the objections sought to be raised on behalf of the petitioners are without substance and no fault can be found with order rejecting the refund claim in question as the same is in consonance with the law laid down by the Apex Court in the said decisions. | 0 | 5,143 | 614 | ### Instruction:
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refund. The proceedings regarding the refund cannot be said to have been concluded or terminated unless the amount repayable as refund is actually paid without any reservation by the department. It would not attain finality to the act of refund unless the actual payment is made unconditionally. Indeed, otherwise the purpose is made unconditionally. Indeed, otherwise the purpose behind the amended Section 11B would be defeated. It is also apparent that the concept of finality or termination of the refund proceedings has been clarified by the judicial pronouncements bearing in mind that it is necessary to put an end to those cases wherein refund has already been paid prior to coming into force of Section 11B and in those cases they should not be allowed to be re-opened. Otherwise, it would have led to a chaotic situation resulting in harassment and great prejudice to the manufacturers.14. In ITC Limiteds case, the contention of the company was that under a mistake of law regarding the true interpretation of Section 4(a) of the said Act, it had cleared its product and had paid excess excise duty under the impression that the price charged by the wholesale dealers to the secondary wholesalers would from the correct basis of assessment and not the price at which the goods were sold to the wholesale dealers. Two application pertaining to the period from 1-9-1976 to 28-5-1971 and 1-6-1971 to 19-2-1972 involving refund of Rs.23,68,686.85 and Rs.26,21,356.16 respectively came to be filed along with three other applications relating to the period from 20-2-1972 to 28-2-1973. All the five applications were rejected by the Assistant Collector by his order dated 9-10-1973. In the appeals preferred by the company, the Collector (Appeals) allowed the appeals by order dated 30-2-1975 in relation to three revision applications pertaining to the period 20-2-1972 to 28-2-1973 granting consequent relief in favour of the company directing refund of the excess excise duty. While rejecting the other two applications on the ground of bar of limitation. The company filed Writ Petition No.971 of 1976 against the order of rejection of the appeals and the Division Bench of the Delhi High Court considering that on account of mistake of law excess excise duty was paid by the company and received by the department, held that the Government was under legal obligation to return the same to the company and, therefore, while allowing the petition ordered that the company could not be non-suited on the ground of limitation and therefore set aside the orders of the Collector (Appeals) as well as of the Assistant Collector, and directed refund of sum of Rs.49,90,043,01 to the company which was to be made within a period of six months from the date of the judgment i.e., from 12-4-1982. The department preferred S.L.P. which was granted and upon hearing the appeal, the Apex Court while dealing with the points raised on the basis of applicability of Section 11B, as amended, held that:-"The thrust of the amendment vide Section 11B(2) of the Act is that the refund of duty paid by the manufacturer can be allowed, if due, only in cases where the assessee has not passed on the incidence of such duty to any other person."It was further held that:-"Under Section 11B(3) (supra) no refund shall be made except as provided for in sub-section (2), as amended, notwithstanding anything to the contrary contained in any judgment, order or direction of the Appellate Tribunal or any court or in any other provisions of the Act or the Rules made thereunder or under any other law for the time being in force."The Apex Court relying upon the decision in Jain Spinners case rejected the plea raised on behalf of the company that the prohibition contained in Section 11B(3) of the Act would not apply to the facts and circumstances of that case, more so because the judgment and order of the High Court directing refund was pending final adjudication by the Apex Court when the amended provision of Section 11B(3) of the Act had come into force with effect from 20-9-1991 and ruled that All pending claims for refund on or before 20-9-1991, are required to be dealt with and disposed of only in accordance with the amended provisions of law, by reason of the amended Section 11B(3) and the present case is no exception."15. Reverting to the facts of the case, as already observed above, in the case in hand, undoubtedly the High Court on the basis that the process of metallising or lacquering of the already manufactured polyester films does not amount to manufacture under the said Act had allowed the Writ Petition No.3040 of 1982 by its judgment dated 7-12-1990 and therefore it directed refund of the excess duty paid by the petitioners during the relevant period. There was no conclusive termination of the proceedings relating to the refund consequent to the said order, on the day when the provisions of the amended Section 11B had come into force. Undisputedly, the refund was not granted till the said day. Neither the issue regarding unjust enrichment was finally and conclusively adjudicated. Applying the law laid down by the Apex Court in the matters of Jain Spinners, ITC Limited and Mafatlal Industries to the facts of the case in hand, it would therefore be apparent that the claim for refund at the instance of the petitioners were still pending on the day when the provisions of the amended Section 11B came into force and therefore the authorities were perfectly justified in issuing the show cause notice in terms of Section 11B(3) of the said Act.16. Bearing in mind the law laid down by the Apex Court in Jain Spinners, ITC Limited and Mafatlal Industries, all the objections sought to be raised on behalf of the petitioners are without substance and no fault can be found with order rejecting the refund claim in question as the same is in consonance with the law laid down by the Apex Court in the said decisions.
### Response:
0
### Explanation:
12. The analysis of the facts of the decision in Jain Spinners case and the ruling by the Apex Court therein clearly disclose that it was in relation to the excise duty payable by the assessee which was assessed by the Assistant Collector onand the amount payable thereunder was paid by thein the year 1986 which was held to be refundable to the company by order datedand this order ofhad attained finality the prior to coming into force of the amended provision of Section 11B of the said Act. Even the application for refund in accordance with the said order of the Collector (Appeal) was filed by the company onTaking note of all these facts, as already observed above. The Apex Court in no uncertain terms held that The High Courts order ofunder which alone the refund was claimed could not be an exception to the said provisions nor could the High Court have made such order afterdirecting the payment contrary to the said provisions. and further held the order ofto be wholly unwarranted and band inApex Court relying upon the decision in Jain Spinners case rejected the plea raised on behalf of the company that the prohibition contained in Section 11B(3) of the Act would not apply to the facts and circumstances of that case, more so because the judgment and order of the High Court directing refund was pending final adjudication by the Apex Court when the amended provision of Section 11B(3) of the Act had come into force with effect fromand ruled that All pending claims for refund on or beforeare required to be dealt with and disposed of only in accordance with the amended provisions of law, by reason of the amended Section 11B(3) and the present case is no exception."15. Reverting to the facts of the case, as already observed above, in the case in hand, undoubtedly the High Court on the basis that the process of metallising or lacquering of the already manufactured polyester films does not amount to manufacture under the said Act had allowed the Writ Petition No.3040 of 1982 by its judgment datedand therefore it directed refund of the excess duty paid by the petitioners during the relevant period. There was no conclusive termination of the proceedings relating to the refund consequent to the said order, on the day when the provisions of the amended Section 11B had come into force. Undisputedly, the refund was not granted till the said day. Neither the issue regarding unjust enrichment was finally and conclusively adjudicated. Applying the law laid down by the Apex Court in the matters of Jain Spinners, ITC Limited and Mafatlal Industries to the facts of the case in hand, it would therefore be apparent that the claim for refund at the instance of the petitioners were still pending on the day when the provisions of the amended Section 11B came into force and therefore the authorities were perfectly justified in issuing the show cause notice in terms of Section 11B(3) of the said Act.16. Bearing in mind the law laid down by the Apex Court in Jain Spinners, ITC Limited and Mafatlal Industries, all the objections sought to be raised on behalf of the petitioners are without substance and no fault can be found with order rejecting the refund claim in question as the same is in consonance with the law laid down by the Apex Court in the said decisions.
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State of Maharashtra Vs. Pandurang K. Pangare | as opposite party no. 3. Notice was issued to Shri Shah in reply to which he has filed detailed affidavit.6. A filed an application for taking proceedings in perjury against Pangare as he was deliberately misleading the Court by suppressing facts and making untrue allegations. In reply Pangare filed an affidavit denying the allegations and reiterating what was said by him in his earlier affidavits. 7. We shall take up the contempt application first. The order prohibiting any construction to be, raised over the land in dispute was passed on 17th September 1993. The question is whether this order was violated by any person and if so its effect From the facts stated above it is clear the Pangare had sold his interest and clear that Pangare had sold his interest and it was ultimately VIPL in whose favour the property was transferred sometime between January and March 1993. It further appears that this company started construction in June and July 1993. But the con- tempt application was filed against Pangare, Gupta and four other persons alleged to be Chief Promoters of the VIPL. It has been mentioned earlier that in view of the affidavits filed by them the notices issued against them were discharged. Shri Shah, the Direc tor of VIPL was impleaded in October 1994 only. Since the day he was impleaded and received the notice which was served on his counsel on the same day in the Court no construction has been carried on in the land in dispute. Therefore, even though the construction had been started by VIPL in June and July 1993 and it was continued by it even after the order was passed by this Court as stands established by the affidavits filed by the officials of A and the report of Additional District Judge, yet Shri Shah being not a party and the notice for contempt having not been served either on Shri Shah or on VIPL before November 1994, no proceedings for contempt can be taken against him. There is thus no option but to reject the contempt application against Shri Shah. 8. As regards the application for per-jury we must confess that we had been baffled by the conduct of Pang= as even though he had sold the property in favour of Shaikh who in its turn sold it in favour of Gupta and it ultimately came to VIPL yet it was Pangare who was not only appearing in this Court but was assuring through his counsel and contesting that no construction was going on the plot in dispute. The explanation of the learned counsel appearing for VIPL that Pangare filed his affidavit because a portion was still in his possession, is not convincing. In fact on 17th September 1993 and 24th September 1993 it was Pangares counsel who vehemently challenged the statement made on behalf of MHADA that any construction was going on. He has in his affidavit filed in reply to perjury, attempted to whittle down the report of the Additional District Judge by saying that it does riot indicate that construction was going on. Since Pangare had sold the property and he was not making any construction on the portion which was in his occupation there was no occasion for him to make such statement which was apt to mislead the Court. Technically speaking he may be right that he was not making any construction. But factually he was wrong as construction activity was going on in the plot. He may not be guilty of contempt or perjury but he was certainly unfair to the Court. It is not necessary to say anything further. We do not propose to take any action against him for perjury but we arc of opinion thathe should be directed to pay a cost of Rs. 10, 000/- which shall be deposited by him within one month with the Legal Aid Committee of this Court.9. This disposes of the two applications filed by MHADA. We may also express our displeasure with the casualness with which MHADA has dealt with the matter. In the affidavit filed by Pangare a.-id Shah it is stated that when Gupta purchased the land he not only notified it but even sent intimation to the MHADA. That was in 1988. Even the VIPL when it entered into an agreement of sale with Gupta is stated to have intimated the A in 19 92. But they slept over the matter. No reply has been filed in this Court about the intimation and service of notice to MHADA. Similarly we are also at pains to observe that the Municipal Council despite intimation from MHADA in 1992 that the dispute in respect of the plot no.18 was pending in the Supreme Court chose to sanction the plan of VIPL. Since sufficient material is not before us we are directing the Chairman of both MHADA and the Municipal Council to make an enquiry into the authenticity of these allegations and if it is true that MHADA was served in 1988 then why no officer appeared on its behalf and did not bring it to the notice of the Mutation Authority that dispute was pending in this Court. Similarly we also direct the Chairman, Municipal Council to look into the matter and to find out whether it was correct as stated by MHADA in its affidavit. that despite intimation by it the Municipal Council sanctioned the plan of VIPL. If it is found to b e true then both the Authorities are directed to take action against the, officials concerned and report compliance of it to this Court within six months. 10.The learned counsel for VIPL vehemently prayed that they may be permitted to complete the constructions. The prayer is rejected. We make it clear that VIPL shall not either itself or through any other person or assignee, raise any further construction nor it shall carry on any building activity in the building till the disposal of the writ petition by the High Court. | 1[ds]8. As regards the application forwe must confess that we had been baffled by the conduct of Pang= as even though he had sold the property in favour of Shaikh who in its turn sold it in favour of Gupta and it ultimately came to VIPL yet it was Pangare who was not only appearing in this Court but was assuring through his counsel and contesting that no construction was going on the plot in dispute. The explanation of the learned counsel appearing for VIPL that Pangare filed his affidavit because a portion was still in his possession, is not convincing. In fact on 17th September 1993 and 24th September 1993 it was Pangares counsel who vehemently challenged the statement made on behalf of MHADA that any construction was going on. He has in his affidavit filed in reply to perjury, attempted to whittle down the report of the Additional District Judge by saying that it does riot indicate that construction was going on. Since Pangare had sold the property and he was not making any construction on the portion which was in his occupation there was no occasion for him to make such statement which was apt to mislead the Court. Technically speaking he may be right that he was not making any construction. But factually he was wrong as construction activity was going on in the plot. He may not be guilty of contempt or perjury but he was certainly unfair to the Court. It is not necessary to say anything further. We do not propose to take any action against him for perjury but we arc of opinion thathe should be directed to pay a cost of Rs. 10, 000/which shall be deposited by him within one month with the Legal Aid Committee of this Court.9. This disposes of the two applications filed by MHADA. We may also express our displeasure with the casualness with which MHADA has dealt with the matter. In the affidavit filed by PangareShah it is stated that when Gupta purchased the land he not only notified it but even sent intimation to the MHADA. That was in 1988. Even the VIPL when it entered into an agreement of sale with Gupta is stated to have intimated the A in 19 92. But they slept over the matter. No reply has been filed in this Court about the intimation and service of notice to MHADA. Similarly we are also at pains to observe that the Municipal Council despite intimation from MHADA in 1992 that the dispute in respect of the plot no.18 was pending in the Supreme Court chose to sanction the plan of VIPL. Since sufficient material is not before us we are directing the Chairman of both MHADA and the Municipal Council to make an enquiry into the authenticity of these allegations and if it is true that MHADA was served in 1988 then why no officer appeared on its behalf and did not bring it to the notice of the Mutation Authority that dispute was pending in this Court. Similarly we also direct the Chairman, Municipal Council to look into the matter and to find out whether it was correct as stated by MHADA in its affidavit. that despite intimation by it the Municipal Council sanctioned the plan of VIPL. If it is found to b e true then both the Authorities are directed to take action against the, officials concerned and report compliance of it to this Court within six months.This disposes of the two applications filed by MHADA. We may also express our displeasure with the casualness with which MHADA has dealt with the matter. In the affidavit filed by Pangareh it is stated that when Gupta purchased the land he not only notified it but even sent intimation to the MHADA. That was in 1988. Even the VIPL when it entered into an agreement of sale with Gupta is stated to have intimated the A in 19 92. But they slept over the matter. No reply has been filed in this Court about the intimation and service of notice to MHADA. Similarly we are also at pains to observe that the Municipal Council despite intimation from MHADA in 1992 that the dispute in respect of the plot no.18 was pending in the Supreme Court chose to sanction the plan of VIPL. Since sufficient material is not before us we are directing the Chairman of both MHADA and the Municipal Council to make an enquiry into the authenticity of these allegations and if it is true that MHADA was served in 1988 then why no officer appeared on its behalf and did not bring it to the notice of the Mutation Authority that dispute was pending in this Court. Similarly we also direct the Chairman, Municipal Council to look into the matter and to find out whether it was correct as stated by MHADA in its affidavit. that despite intimation by it the Municipal Council sanctioned the plan of VIPL. If it is found to b e true then both the Authorities are directed to take action against the, officials concerned and report compliance of it to this Court within sixlearned counsel for VIPL vehemently prayed that they may be permitted to complete the constructions. The prayer is rejected. We make it clear that VIPL shall not either itself or through any other person or assignee, raise any further construction nor it shall carry on any building activity in the building till the disposal of the writ petition by the High Court. | 1 | 2,551 | 973 | ### Instruction:
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as opposite party no. 3. Notice was issued to Shri Shah in reply to which he has filed detailed affidavit.6. A filed an application for taking proceedings in perjury against Pangare as he was deliberately misleading the Court by suppressing facts and making untrue allegations. In reply Pangare filed an affidavit denying the allegations and reiterating what was said by him in his earlier affidavits. 7. We shall take up the contempt application first. The order prohibiting any construction to be, raised over the land in dispute was passed on 17th September 1993. The question is whether this order was violated by any person and if so its effect From the facts stated above it is clear the Pangare had sold his interest and clear that Pangare had sold his interest and it was ultimately VIPL in whose favour the property was transferred sometime between January and March 1993. It further appears that this company started construction in June and July 1993. But the con- tempt application was filed against Pangare, Gupta and four other persons alleged to be Chief Promoters of the VIPL. It has been mentioned earlier that in view of the affidavits filed by them the notices issued against them were discharged. Shri Shah, the Direc tor of VIPL was impleaded in October 1994 only. Since the day he was impleaded and received the notice which was served on his counsel on the same day in the Court no construction has been carried on in the land in dispute. Therefore, even though the construction had been started by VIPL in June and July 1993 and it was continued by it even after the order was passed by this Court as stands established by the affidavits filed by the officials of A and the report of Additional District Judge, yet Shri Shah being not a party and the notice for contempt having not been served either on Shri Shah or on VIPL before November 1994, no proceedings for contempt can be taken against him. There is thus no option but to reject the contempt application against Shri Shah. 8. As regards the application for per-jury we must confess that we had been baffled by the conduct of Pang= as even though he had sold the property in favour of Shaikh who in its turn sold it in favour of Gupta and it ultimately came to VIPL yet it was Pangare who was not only appearing in this Court but was assuring through his counsel and contesting that no construction was going on the plot in dispute. The explanation of the learned counsel appearing for VIPL that Pangare filed his affidavit because a portion was still in his possession, is not convincing. In fact on 17th September 1993 and 24th September 1993 it was Pangares counsel who vehemently challenged the statement made on behalf of MHADA that any construction was going on. He has in his affidavit filed in reply to perjury, attempted to whittle down the report of the Additional District Judge by saying that it does riot indicate that construction was going on. Since Pangare had sold the property and he was not making any construction on the portion which was in his occupation there was no occasion for him to make such statement which was apt to mislead the Court. Technically speaking he may be right that he was not making any construction. But factually he was wrong as construction activity was going on in the plot. He may not be guilty of contempt or perjury but he was certainly unfair to the Court. It is not necessary to say anything further. We do not propose to take any action against him for perjury but we arc of opinion thathe should be directed to pay a cost of Rs. 10, 000/- which shall be deposited by him within one month with the Legal Aid Committee of this Court.9. This disposes of the two applications filed by MHADA. We may also express our displeasure with the casualness with which MHADA has dealt with the matter. In the affidavit filed by Pangare a.-id Shah it is stated that when Gupta purchased the land he not only notified it but even sent intimation to the MHADA. That was in 1988. Even the VIPL when it entered into an agreement of sale with Gupta is stated to have intimated the A in 19 92. But they slept over the matter. No reply has been filed in this Court about the intimation and service of notice to MHADA. Similarly we are also at pains to observe that the Municipal Council despite intimation from MHADA in 1992 that the dispute in respect of the plot no.18 was pending in the Supreme Court chose to sanction the plan of VIPL. Since sufficient material is not before us we are directing the Chairman of both MHADA and the Municipal Council to make an enquiry into the authenticity of these allegations and if it is true that MHADA was served in 1988 then why no officer appeared on its behalf and did not bring it to the notice of the Mutation Authority that dispute was pending in this Court. Similarly we also direct the Chairman, Municipal Council to look into the matter and to find out whether it was correct as stated by MHADA in its affidavit. that despite intimation by it the Municipal Council sanctioned the plan of VIPL. If it is found to b e true then both the Authorities are directed to take action against the, officials concerned and report compliance of it to this Court within six months. 10.The learned counsel for VIPL vehemently prayed that they may be permitted to complete the constructions. The prayer is rejected. We make it clear that VIPL shall not either itself or through any other person or assignee, raise any further construction nor it shall carry on any building activity in the building till the disposal of the writ petition by the High Court.
### Response:
1
### Explanation:
8. As regards the application forwe must confess that we had been baffled by the conduct of Pang= as even though he had sold the property in favour of Shaikh who in its turn sold it in favour of Gupta and it ultimately came to VIPL yet it was Pangare who was not only appearing in this Court but was assuring through his counsel and contesting that no construction was going on the plot in dispute. The explanation of the learned counsel appearing for VIPL that Pangare filed his affidavit because a portion was still in his possession, is not convincing. In fact on 17th September 1993 and 24th September 1993 it was Pangares counsel who vehemently challenged the statement made on behalf of MHADA that any construction was going on. He has in his affidavit filed in reply to perjury, attempted to whittle down the report of the Additional District Judge by saying that it does riot indicate that construction was going on. Since Pangare had sold the property and he was not making any construction on the portion which was in his occupation there was no occasion for him to make such statement which was apt to mislead the Court. Technically speaking he may be right that he was not making any construction. But factually he was wrong as construction activity was going on in the plot. He may not be guilty of contempt or perjury but he was certainly unfair to the Court. It is not necessary to say anything further. We do not propose to take any action against him for perjury but we arc of opinion thathe should be directed to pay a cost of Rs. 10, 000/which shall be deposited by him within one month with the Legal Aid Committee of this Court.9. This disposes of the two applications filed by MHADA. We may also express our displeasure with the casualness with which MHADA has dealt with the matter. In the affidavit filed by PangareShah it is stated that when Gupta purchased the land he not only notified it but even sent intimation to the MHADA. That was in 1988. Even the VIPL when it entered into an agreement of sale with Gupta is stated to have intimated the A in 19 92. But they slept over the matter. No reply has been filed in this Court about the intimation and service of notice to MHADA. Similarly we are also at pains to observe that the Municipal Council despite intimation from MHADA in 1992 that the dispute in respect of the plot no.18 was pending in the Supreme Court chose to sanction the plan of VIPL. Since sufficient material is not before us we are directing the Chairman of both MHADA and the Municipal Council to make an enquiry into the authenticity of these allegations and if it is true that MHADA was served in 1988 then why no officer appeared on its behalf and did not bring it to the notice of the Mutation Authority that dispute was pending in this Court. Similarly we also direct the Chairman, Municipal Council to look into the matter and to find out whether it was correct as stated by MHADA in its affidavit. that despite intimation by it the Municipal Council sanctioned the plan of VIPL. If it is found to b e true then both the Authorities are directed to take action against the, officials concerned and report compliance of it to this Court within six months.This disposes of the two applications filed by MHADA. We may also express our displeasure with the casualness with which MHADA has dealt with the matter. In the affidavit filed by Pangareh it is stated that when Gupta purchased the land he not only notified it but even sent intimation to the MHADA. That was in 1988. Even the VIPL when it entered into an agreement of sale with Gupta is stated to have intimated the A in 19 92. But they slept over the matter. No reply has been filed in this Court about the intimation and service of notice to MHADA. Similarly we are also at pains to observe that the Municipal Council despite intimation from MHADA in 1992 that the dispute in respect of the plot no.18 was pending in the Supreme Court chose to sanction the plan of VIPL. Since sufficient material is not before us we are directing the Chairman of both MHADA and the Municipal Council to make an enquiry into the authenticity of these allegations and if it is true that MHADA was served in 1988 then why no officer appeared on its behalf and did not bring it to the notice of the Mutation Authority that dispute was pending in this Court. Similarly we also direct the Chairman, Municipal Council to look into the matter and to find out whether it was correct as stated by MHADA in its affidavit. that despite intimation by it the Municipal Council sanctioned the plan of VIPL. If it is found to b e true then both the Authorities are directed to take action against the, officials concerned and report compliance of it to this Court within sixlearned counsel for VIPL vehemently prayed that they may be permitted to complete the constructions. The prayer is rejected. We make it clear that VIPL shall not either itself or through any other person or assignee, raise any further construction nor it shall carry on any building activity in the building till the disposal of the writ petition by the High Court.
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Bagh Hussain Vs. State of Jammu and Kashmir | SHAH, J.1. By our order, dated December 19, 1969, we have dismissed this petition. We are recording the reasons for the order dismissing the petition.2. By an undated letter addressed by the petitioner, Bagh Hussain, to this Court, the petitioner claimed that he was illegally detained in the Central Jail, Jammu for more than six months and that an order for his release may be made. The letter was treated as a petition for a writ of habeas corpus, and rule nisi was issued to the State of Jammu and Kashmir to show cause why the petitioner should not be released.3. Shri P. N. Bakaya, Addl. Secretary to Government of Jammu and Kashmir, has filed an affidavit. In the affidavit it is submitted that the District Magistrate, Rajouri ordered under Section 3(2) read with Section 5 of the Jammu and Kashmir Prevention Detention Act, 1964, with a view to preventing the petitioner, Bagh Hussain, from acting in a manner prejudicial to the security of the State, that the petitioner be detained, and that the petitioner was informed by an order, dated July, 23, 1969, under Section 8 read with Section 13-A of the Jammu and Kashmir Prevention Detention Act, 1964, that it was against the public interest to disclose to him the grounds on which the order of detention was made. Shri Bakaya further affirmed that the detention order issued by the District Magistrate was approved by the Government of Jammu and Kashmir after the case was placed before the Chief Minister "incharge, Home Department" and an order, dated August 11, 1969, approving of the detention was made.4. Copies of the order of the District Magistrate, Rajouri, ordering the detention of the petitioner and declaring that it was against the public interest to disclose the grounds of detention to the petitioner and informing him accordingly under Section 8 read with Section 13-A of the said Act, are filed. A copy of the order approving the order of detention of the Government has also been filed.5. Under Section 8 of the Jammu and Kashmir Preventive Detention Act, 1964, the grounds of detention have to be disclosed to the person affected by the order of detention. But under Section 13-A of the said Act, it is provided by sub-section (2) that if a person is detained for acting in a manner prejudicial to the security of the State, nothing in Section 8 of the Act would apply, if the authority making the order by the same or a subsequent order directs to the person detained, informing him that it would be against the public interest to disclose to him the grounds on which his detention order was made.6. In the present case, the District Magistrate has made an order under Section 13-A(2) read with Section 8. There is no ground to think that the order of detention has been made for a collateral purpose. | 0[ds]5. Under Section 8 of the Jammu and Kashmir Preventive Detention Act, 1964, the grounds of detention have to be disclosed to the person affected by the order of detention. But under Sectionof the said Act, it is provided by(2) that if a person is detained for acting in a manner prejudicial to the security of the State, nothing in Section 8 of the Act would apply, if the authority making the order by the same or a subsequent order directs to the person detained, informing him that it would be against the public interest to disclose to him the grounds on which his detention order was made. | 0 | 545 | 124 | ### 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:
SHAH, J.1. By our order, dated December 19, 1969, we have dismissed this petition. We are recording the reasons for the order dismissing the petition.2. By an undated letter addressed by the petitioner, Bagh Hussain, to this Court, the petitioner claimed that he was illegally detained in the Central Jail, Jammu for more than six months and that an order for his release may be made. The letter was treated as a petition for a writ of habeas corpus, and rule nisi was issued to the State of Jammu and Kashmir to show cause why the petitioner should not be released.3. Shri P. N. Bakaya, Addl. Secretary to Government of Jammu and Kashmir, has filed an affidavit. In the affidavit it is submitted that the District Magistrate, Rajouri ordered under Section 3(2) read with Section 5 of the Jammu and Kashmir Prevention Detention Act, 1964, with a view to preventing the petitioner, Bagh Hussain, from acting in a manner prejudicial to the security of the State, that the petitioner be detained, and that the petitioner was informed by an order, dated July, 23, 1969, under Section 8 read with Section 13-A of the Jammu and Kashmir Prevention Detention Act, 1964, that it was against the public interest to disclose to him the grounds on which the order of detention was made. Shri Bakaya further affirmed that the detention order issued by the District Magistrate was approved by the Government of Jammu and Kashmir after the case was placed before the Chief Minister "incharge, Home Department" and an order, dated August 11, 1969, approving of the detention was made.4. Copies of the order of the District Magistrate, Rajouri, ordering the detention of the petitioner and declaring that it was against the public interest to disclose the grounds of detention to the petitioner and informing him accordingly under Section 8 read with Section 13-A of the said Act, are filed. A copy of the order approving the order of detention of the Government has also been filed.5. Under Section 8 of the Jammu and Kashmir Preventive Detention Act, 1964, the grounds of detention have to be disclosed to the person affected by the order of detention. But under Section 13-A of the said Act, it is provided by sub-section (2) that if a person is detained for acting in a manner prejudicial to the security of the State, nothing in Section 8 of the Act would apply, if the authority making the order by the same or a subsequent order directs to the person detained, informing him that it would be against the public interest to disclose to him the grounds on which his detention order was made.6. In the present case, the District Magistrate has made an order under Section 13-A(2) read with Section 8. There is no ground to think that the order of detention has been made for a collateral purpose.
### Response:
0
### Explanation:
5. Under Section 8 of the Jammu and Kashmir Preventive Detention Act, 1964, the grounds of detention have to be disclosed to the person affected by the order of detention. But under Sectionof the said Act, it is provided by(2) that if a person is detained for acting in a manner prejudicial to the security of the State, nothing in Section 8 of the Act would apply, if the authority making the order by the same or a subsequent order directs to the person detained, informing him that it would be against the public interest to disclose to him the grounds on which his detention order was made.
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Chairman And M.D., B.P.L. Ltd Vs. S.P. Gururaja | meaning of Article 12 but that would not mean that in a given case the court shall assume the role of the Executive Government of the State. Statutory functions are assigned to the State by the Legislature and not by the Court. The Courts while exercising its jurisdiction ordinarily must remind itself about the doctrine of separation of powers which, however, although does not mean that the Court shall not step-in in any circumstance whatsoever but the Court while exercising its power must also remind itself about the rule of self-restraint. The courts, as indicated hereinbefore, ordinarily is reluctant to assume the functions of the statutory functionaries. It allows them to perform their duties at the first instance. The court steps in by Mandamus when the State fails to perform its duty. It shall also step in when the discretion is exercised but the same has not been done legally and validly. It steps in by way of a judicial review over the orders passed. Existence of alternative remedy albeit is no bar to exercise jurisdiction under Article 226 of the Constitution of India but ordinarily it will not do so unless it is found that an order has been passed wholly without jurisdiction or contradictory to the constitutional or statutory provisions or where an order has been passed without complying with the principles of natural justice. (See Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and others (1998) 8 SCC 1 ). Exercise of self-restraint, thus, should be adhered to, subject of course to, just exceptions." 32. Dawn Oliver in Constitutional Reform in the UK under the heading the Courts and Theories of Democracy, Citizenship, and Good Governance at page 105 states: "However, this concept of democracy as rights-based with limited governmental power, and in particular of the role of the Courts in a democracy, carries high risk for the judges- and for the public. Courts may interfere inadvisedly in public administration. The case of Bromley London Borough Council vs. Greater London Council (1983) 1 AC 768, HL) is a classic example. The House of Lords quashed the GLC cheap fares policy as being based on a misreading of the statutory provisions, but were accused of themselves misunderstanding transport policy in so doing. The courts are not experts in policy and public administration - hence Jowells point that the courts should not step beyond their institutional capacity (Jowell, 2000). Acceptance of this approach is reflected in the judgments of Laws LJ in International Transport Roth GmbH vs. Secretary of State for the Home Department (2002) EWCA Civ 158, (2002) 3 WLR 344), and of Lord Nimmo Smith in Adams vs. Lord Advocate (Court of Session. Times, 8 August 2002) in which a distinction was drawn between areas where the subject matter lies within the expertise of the courts (for instance, criminal justice, including sentencing and detention of individuals) and those which were more appropriate for decision by democratically elected and accountable bodies. If the courts step outside the area of their institutional competence, government may react by getting Parliament to legislate to oust the jurisdiction of the courts altogether. Such a step would undermine the rule of law. Government and public opinion may come to question the legitimacy of the judges exercising judicial review against Ministers and thus undermine the authority of the courts and the rule of law." Conclusions: 33. Salient principles of law as noticed hereinbefore, were not considered by the High Court in passing the impugned judgment.34. In the facts and circumstances, we do not find that the Board and the State had committed any illegality which could have been a subject matter of judicial review. The High Court in our opinion committed a manifest error insofar as it failed to take into consideration that the delay in this case had defeated equity. The allotment was made in the year 1995. The writ application was filed after one year. By that time the Company had not only took possession of the land but also made sufficient investment. Delay of this nature shall have been considered by the High Court to be of vital importance.35. Furthermore, the High Court ought to have taken into consideration the factum of resistance in the matter from those persons whose lands have been acquired. Only because the lands are vested in the State upon acquisition thereof, the same by itself would not mean that the persons whose lands were acquired were not interested in getting the allotment. The locus standi of the respondent ought to have been taken into consideration having regard to the specific pleas raised in this behalf by the appellants herein.36. Undue haste also is a matter which by itself would not have been a ground for exercise of power of judicial review unless it is held to be malafide. What is necessary in such matters is not the time taken for allotment but the manner in which the action had been taken. The court, it is trite, is not concerned with the merit of the decision but the decision making process. In absence of any finding that any legal malice was committed, the impugned allotment of land could not have been interfered with. What was only necessary to be seen was as to whether there had been a fair play in action. 37. The question as to whether any undue haste has been shown in taking an administrative decision is essentially a question of fact. The state had devolved a policy of Single Window System with a view to get rid of red-tapism generally prevailing in the bureaucracy. A decision which has been taken after due deliberations and upon due application of mind cannot be held to be suffering from malice in law on the ground that there had been undue haste on the part of the State and the Board. (See Bangalore Medical Trust vs. B.S. Muddappa and others (1991) 4 SCC 54 and Pfizer Ltd. vs. Mazdoor Congress and others (1996) 5 SCC 609 ). | 1[ds]20. It is a well-settled principle of law that different considerations arises for the purpose of fixation of price in respect of price of land i.e. for a small area vis-a-vis a large area. The allotment price was Rs. 3,73,324/- per acre which, having regard to the policy decision of the State as also the facts and circumstances of the case cannot be said to be wholly arbitrary warranting interference by the Court. There cannot be any doubt whatsoever that normally allotment of such industrial plots should be done in terms of Regulation 7 aforementioned. But the same by itself did not preclude the authorities of the Board and the State having regard to the fact situation obtaining herein to take recourse to Regulation 13. Once the Court finds that the power exercised by the statutory authorities can be traced to a provision of statute, unless and until violation of mandatory provisions thereof are found out and/ or it is held that a decision is taken for unauthorised or illegal purpose, the court will not ordinarily interfere either with the policy decision or any decision taken by the executive authorities pursuant to or in furtherance thereof.Salient principles of law as noticed hereinbefore, were not considered by the High Court in passing the impugned judgment.34. In the facts and circumstances, we do not find that the Board and the State had committed any illegality which could have been a subject matter of judicial review. The High Court in our opinion committed a manifest error insofar as it failed to take into consideration that the delay in this case had defeated equity. The allotment was made in the year 1995. The writ application was filed after one year. By that time the Company had not only took possession of the land but also made sufficient investment. Delay of this nature shall have been considered by the High Court to be of vital importance.35. Furthermore, the High Court ought to have taken into consideration the factum of resistance in the matter from those persons whose lands have been acquired. Only because the lands are vested in the State upon acquisition thereof, the same by itself would not mean that the persons whose lands were acquired were not interested in getting the allotment. The locus standi of the respondent ought to have been taken into consideration having regard to the specific pleas raised in this behalf by the appellants herein.36. Undue haste also is a matter which by itself would not have been a ground for exercise of power of judicial review unless it is held to be malafide. What is necessary in such matters is not the time taken for allotment but the manner in which the action had been taken. The court, it is trite, is not concerned with the merit of the decision but the decision making process. In absence of any finding that any legal malice was committed, the impugned allotment of land could not have been interfered with. What was only necessary to be seen was as to whether there had been a fair play instate had devolved a policy of Single Window System with a view to get rid of red-tapism generally prevailing in the bureaucracy. A decision which has been taken after due deliberations and upon due application of mind cannot be held to be suffering from malice in law on the ground that there had been undue haste on the part of the State and the | 1 | 8,598 | 619 | ### 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:
meaning of Article 12 but that would not mean that in a given case the court shall assume the role of the Executive Government of the State. Statutory functions are assigned to the State by the Legislature and not by the Court. The Courts while exercising its jurisdiction ordinarily must remind itself about the doctrine of separation of powers which, however, although does not mean that the Court shall not step-in in any circumstance whatsoever but the Court while exercising its power must also remind itself about the rule of self-restraint. The courts, as indicated hereinbefore, ordinarily is reluctant to assume the functions of the statutory functionaries. It allows them to perform their duties at the first instance. The court steps in by Mandamus when the State fails to perform its duty. It shall also step in when the discretion is exercised but the same has not been done legally and validly. It steps in by way of a judicial review over the orders passed. Existence of alternative remedy albeit is no bar to exercise jurisdiction under Article 226 of the Constitution of India but ordinarily it will not do so unless it is found that an order has been passed wholly without jurisdiction or contradictory to the constitutional or statutory provisions or where an order has been passed without complying with the principles of natural justice. (See Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and others (1998) 8 SCC 1 ). Exercise of self-restraint, thus, should be adhered to, subject of course to, just exceptions." 32. Dawn Oliver in Constitutional Reform in the UK under the heading the Courts and Theories of Democracy, Citizenship, and Good Governance at page 105 states: "However, this concept of democracy as rights-based with limited governmental power, and in particular of the role of the Courts in a democracy, carries high risk for the judges- and for the public. Courts may interfere inadvisedly in public administration. The case of Bromley London Borough Council vs. Greater London Council (1983) 1 AC 768, HL) is a classic example. The House of Lords quashed the GLC cheap fares policy as being based on a misreading of the statutory provisions, but were accused of themselves misunderstanding transport policy in so doing. The courts are not experts in policy and public administration - hence Jowells point that the courts should not step beyond their institutional capacity (Jowell, 2000). Acceptance of this approach is reflected in the judgments of Laws LJ in International Transport Roth GmbH vs. Secretary of State for the Home Department (2002) EWCA Civ 158, (2002) 3 WLR 344), and of Lord Nimmo Smith in Adams vs. Lord Advocate (Court of Session. Times, 8 August 2002) in which a distinction was drawn between areas where the subject matter lies within the expertise of the courts (for instance, criminal justice, including sentencing and detention of individuals) and those which were more appropriate for decision by democratically elected and accountable bodies. If the courts step outside the area of their institutional competence, government may react by getting Parliament to legislate to oust the jurisdiction of the courts altogether. Such a step would undermine the rule of law. Government and public opinion may come to question the legitimacy of the judges exercising judicial review against Ministers and thus undermine the authority of the courts and the rule of law." Conclusions: 33. Salient principles of law as noticed hereinbefore, were not considered by the High Court in passing the impugned judgment.34. In the facts and circumstances, we do not find that the Board and the State had committed any illegality which could have been a subject matter of judicial review. The High Court in our opinion committed a manifest error insofar as it failed to take into consideration that the delay in this case had defeated equity. The allotment was made in the year 1995. The writ application was filed after one year. By that time the Company had not only took possession of the land but also made sufficient investment. Delay of this nature shall have been considered by the High Court to be of vital importance.35. Furthermore, the High Court ought to have taken into consideration the factum of resistance in the matter from those persons whose lands have been acquired. Only because the lands are vested in the State upon acquisition thereof, the same by itself would not mean that the persons whose lands were acquired were not interested in getting the allotment. The locus standi of the respondent ought to have been taken into consideration having regard to the specific pleas raised in this behalf by the appellants herein.36. Undue haste also is a matter which by itself would not have been a ground for exercise of power of judicial review unless it is held to be malafide. What is necessary in such matters is not the time taken for allotment but the manner in which the action had been taken. The court, it is trite, is not concerned with the merit of the decision but the decision making process. In absence of any finding that any legal malice was committed, the impugned allotment of land could not have been interfered with. What was only necessary to be seen was as to whether there had been a fair play in action. 37. The question as to whether any undue haste has been shown in taking an administrative decision is essentially a question of fact. The state had devolved a policy of Single Window System with a view to get rid of red-tapism generally prevailing in the bureaucracy. A decision which has been taken after due deliberations and upon due application of mind cannot be held to be suffering from malice in law on the ground that there had been undue haste on the part of the State and the Board. (See Bangalore Medical Trust vs. B.S. Muddappa and others (1991) 4 SCC 54 and Pfizer Ltd. vs. Mazdoor Congress and others (1996) 5 SCC 609 ).
### Response:
1
### Explanation:
20. It is a well-settled principle of law that different considerations arises for the purpose of fixation of price in respect of price of land i.e. for a small area vis-a-vis a large area. The allotment price was Rs. 3,73,324/- per acre which, having regard to the policy decision of the State as also the facts and circumstances of the case cannot be said to be wholly arbitrary warranting interference by the Court. There cannot be any doubt whatsoever that normally allotment of such industrial plots should be done in terms of Regulation 7 aforementioned. But the same by itself did not preclude the authorities of the Board and the State having regard to the fact situation obtaining herein to take recourse to Regulation 13. Once the Court finds that the power exercised by the statutory authorities can be traced to a provision of statute, unless and until violation of mandatory provisions thereof are found out and/ or it is held that a decision is taken for unauthorised or illegal purpose, the court will not ordinarily interfere either with the policy decision or any decision taken by the executive authorities pursuant to or in furtherance thereof.Salient principles of law as noticed hereinbefore, were not considered by the High Court in passing the impugned judgment.34. In the facts and circumstances, we do not find that the Board and the State had committed any illegality which could have been a subject matter of judicial review. The High Court in our opinion committed a manifest error insofar as it failed to take into consideration that the delay in this case had defeated equity. The allotment was made in the year 1995. The writ application was filed after one year. By that time the Company had not only took possession of the land but also made sufficient investment. Delay of this nature shall have been considered by the High Court to be of vital importance.35. Furthermore, the High Court ought to have taken into consideration the factum of resistance in the matter from those persons whose lands have been acquired. Only because the lands are vested in the State upon acquisition thereof, the same by itself would not mean that the persons whose lands were acquired were not interested in getting the allotment. The locus standi of the respondent ought to have been taken into consideration having regard to the specific pleas raised in this behalf by the appellants herein.36. Undue haste also is a matter which by itself would not have been a ground for exercise of power of judicial review unless it is held to be malafide. What is necessary in such matters is not the time taken for allotment but the manner in which the action had been taken. The court, it is trite, is not concerned with the merit of the decision but the decision making process. In absence of any finding that any legal malice was committed, the impugned allotment of land could not have been interfered with. What was only necessary to be seen was as to whether there had been a fair play instate had devolved a policy of Single Window System with a view to get rid of red-tapism generally prevailing in the bureaucracy. A decision which has been taken after due deliberations and upon due application of mind cannot be held to be suffering from malice in law on the ground that there had been undue haste on the part of the State and the
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Gunjan Girishbhai Mehta Vs. Director of Investigation and Ors | 1. Heard the learned Counsels for the parties and perused the relevant material. Delay condoned.2. Notice Under Section 132 of the Income-tax Act, 1961 (for short "the Act") was issued in the name of a dead person. The said notice was duly received by the present Petitioner as the legal heir of the dead person. Notice of assessment Under Section 158BC of the Act was issued and in the assessment proceedings, where the income was declared to be "nil", the present Petitioner as the legal heir had participated. Thereafter, notice Under Section 158BD of the Act was issued to the present Petitioner on the basis of information coming to light in the course of search. Aggrieved, the Petitioner moved the High Court and on dismissal of the writ petition filed, the present special leave petition has been instituted.3. The point urged before us, shortly put, is that if the original search warrant is invalid the consequential action Under Section 158BD would also be invalid. We do not agree. The issue of invalidity of the search warrant was not raised at any point of time prior to the notice Under Section 158BD. In fact, the Petitioner had participated in the proceedings of assessment initiated Under Section 158BC of the Act. The information discovered in the course of the search, if capable of generating the satisfaction for issuing a notice Under Section 158BD, cannot altogether become irrelevant for further action Under Section 158BD of the Act.4. The reliance placed on the decision of the High Court of Punjab and Haryana in CIT v. Rakesh Kumar [2009] 178 Taxman 224 (P & H) : [2009] 313 ITR 305 (P & H) against which special leave petition [SLP(C) No...CC 3623/2009] has been dismissed by this Court and the decision of this Court in Asst. CIT v. A.R. Enterprises [2013] 29 taxmann.com 50 (SC) : [2013] 350 ITR 489 (SC) are on entirely different facts.5. In Rakesh Kumar (supra) the challenge was to the proceedings of assessment Under Section 158BC of the Act on the basis of a search warrant issued in the name of a dead person. The issue in A.R. Enterprises (supra) has no similarity to the issue in hand, namely, the validity of the proceedings Under Section 158BD of the Act. | 0[ds]We do not agree. The issue of invalidity of the search warrant was not raised at any point of time prior to the notice Under Section 158BD. In fact, the Petitioner had participated in the proceedings of assessment initiated Under Section 158BC of the Act. The information discovered in the course of the search, if capable of generating the satisfaction for issuing a notice Under Section 158BD, cannot altogether become irrelevant for further action Under Section 158BD of the Act4. The reliance placed on the decision of the High Court of Punjab and Haryana in CIT v. Rakesh Kumar [2009] 178 Taxman 224 (P & H) : [2009] 313 ITR 305 (P & H) against which special leave petition [SLP(C) No...CC 3623/2009] has been dismissed by this Court and the decision of this Court in Asst. CIT v. A.R. Enterprises [2013] 29 taxmann.com 50 (SC) : [2013] 350 ITR 489 (SC) are on entirely different facts5. In Rakesh Kumar (supra) the challenge was to the proceedings of assessment Under Section 158BC of the Act on the basis of a search warrant issued in the name of a dead person. The issue in A.R. Enterprises (supra) has no similarity to the issue in hand, namely, the validity of the proceedings Under Section 158BD of the Act. | 0 | 445 | 262 | ### 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:
1. Heard the learned Counsels for the parties and perused the relevant material. Delay condoned.2. Notice Under Section 132 of the Income-tax Act, 1961 (for short "the Act") was issued in the name of a dead person. The said notice was duly received by the present Petitioner as the legal heir of the dead person. Notice of assessment Under Section 158BC of the Act was issued and in the assessment proceedings, where the income was declared to be "nil", the present Petitioner as the legal heir had participated. Thereafter, notice Under Section 158BD of the Act was issued to the present Petitioner on the basis of information coming to light in the course of search. Aggrieved, the Petitioner moved the High Court and on dismissal of the writ petition filed, the present special leave petition has been instituted.3. The point urged before us, shortly put, is that if the original search warrant is invalid the consequential action Under Section 158BD would also be invalid. We do not agree. The issue of invalidity of the search warrant was not raised at any point of time prior to the notice Under Section 158BD. In fact, the Petitioner had participated in the proceedings of assessment initiated Under Section 158BC of the Act. The information discovered in the course of the search, if capable of generating the satisfaction for issuing a notice Under Section 158BD, cannot altogether become irrelevant for further action Under Section 158BD of the Act.4. The reliance placed on the decision of the High Court of Punjab and Haryana in CIT v. Rakesh Kumar [2009] 178 Taxman 224 (P & H) : [2009] 313 ITR 305 (P & H) against which special leave petition [SLP(C) No...CC 3623/2009] has been dismissed by this Court and the decision of this Court in Asst. CIT v. A.R. Enterprises [2013] 29 taxmann.com 50 (SC) : [2013] 350 ITR 489 (SC) are on entirely different facts.5. In Rakesh Kumar (supra) the challenge was to the proceedings of assessment Under Section 158BC of the Act on the basis of a search warrant issued in the name of a dead person. The issue in A.R. Enterprises (supra) has no similarity to the issue in hand, namely, the validity of the proceedings Under Section 158BD of the Act.
### Response:
0
### Explanation:
We do not agree. The issue of invalidity of the search warrant was not raised at any point of time prior to the notice Under Section 158BD. In fact, the Petitioner had participated in the proceedings of assessment initiated Under Section 158BC of the Act. The information discovered in the course of the search, if capable of generating the satisfaction for issuing a notice Under Section 158BD, cannot altogether become irrelevant for further action Under Section 158BD of the Act4. The reliance placed on the decision of the High Court of Punjab and Haryana in CIT v. Rakesh Kumar [2009] 178 Taxman 224 (P & H) : [2009] 313 ITR 305 (P & H) against which special leave petition [SLP(C) No...CC 3623/2009] has been dismissed by this Court and the decision of this Court in Asst. CIT v. A.R. Enterprises [2013] 29 taxmann.com 50 (SC) : [2013] 350 ITR 489 (SC) are on entirely different facts5. In Rakesh Kumar (supra) the challenge was to the proceedings of assessment Under Section 158BC of the Act on the basis of a search warrant issued in the name of a dead person. The issue in A.R. Enterprises (supra) has no similarity to the issue in hand, namely, the validity of the proceedings Under Section 158BD of the Act.
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Bses Limited & Another Vs. Union of India & Others | of FGD Plant. NEERI Report, as also assessment made by the experts of DTEPA, came to the conclusion that with a view to protect the environment, particularly in an environmentally fragile area, it was necessary that the FGD Plant be installed. The matters considered by DTEPA and the experts before it are highly technical matters, on which this Court cannot express its opinion. Since DTEPA has taken the decision after consideration of all aspects of the matter, interference by this Court in writ jurisdiction may not be justified. In fact, the same was the submission advanced by the petitioners when the grant of clearance to them for installation of the plant was challenged before this Court. While dismissing the writ petition filed by the Bombay Environmental Action Group, this Court observed:---"14. Mr. Andhyarujina, learned Counsel for the Company (Bombay Suburban Electric Supply Company Limited), laid considerable emphasis on Courts power of judicial review in a matter and project of the instant nature. He contended that the Courts jurisdiction under Article 226 of the Constitution was not unlimited. If the Court found that the concerned Government authorities, both at the Centre and State level, have applied their minds to the relevant facts and circumstances and that there are no extraneous considerations weighing with the authorities, then, in the absence of mala fides or ulterior motive, it was not open to the Court to revoke the executive and/or administrative decisions merely and only because another view of the matter may also perhaps be a possible view. He contended that all the objections were duly considered. Indeed, the matter was even reconsidered in the light of subsequent representations. He emphasised that there was no allegation of any ulterior motive or any mala fides. In a matter such as this involving diverse pros and cons, technical and otherwise, the Courts should be extremely slow to interfere unless inevitable..........."17. Environmental issues are relevant and deserve serious consideration. But the needs of the environment require to be balanced with the needs of the community at large and the needs of a developing country. If one finds, as in this case, that all possible environmental safe-guards have been taken, the check and control by way of judicial review should then come to an end. Once an elaborate and extensive exercise by all concerned including the environmentalists, the State and the Central authorities and expert-bodies is undertaken and effected and its end result judicially considered and reviewed, the matter thereafter should in all fairness stand concluded. Endless arguments, endless reviews and endless litigation in a matter such as this, can carry one to no end and may as well turn counter productive. While public interest litigation is a welcome development, there are nevertheless limits beyond which it may as well cease to be in public interest any further."The same view was reiterated by the Supreme Court when the matter was taken in appeal. In the judgment in the case of Dahanu Taluka Environment Protection Group & another v. Bombay Suburban Electricity Supply Company Ltd. & others reported in 1991(2) Supreme Court Cases 539, the Court observed :"2. The limitations, or more appropriately, the self-imposed restrictions of a Court in considering such an issue as this (construction of a thermal power plant) have been set out by the Court in (Rural Litigation & Entitlement Kendra v. State of U.P.)4, 1987(1) S.C.R. 637 .. See in this regard the connected detailed judgment of Ranganath Misra, J., (as he then was) in the same matter at 1987(1) S.C.R. 641, and (Sachidanand Pandey v. State of W.B.)5, 1987(2) S.C.C. 295. The observations in those decisions need not be reiterated here. It is sufficient to observe that it is primarily for the Governments concerned to consider the importance of public projects for the betterment of the conditions of living of the people on the one hand and the necessity for preservation of social and ecological balances, avoidance of deforestation and maintenance of purity of the atmosphere and water free from pollution on the other in the light of various factual, technical and other aspects that may be brought to its notice by various bodies of laymen, experts and public workers and strike a just balance between these two conflicting objectives. The Courts role is restricted to examine whether the Government has taken into account all relevant aspects and has neither ignored nor overlooked any material considerations nor been influenced by extraneous or immaterial considerations in arriving at its final decision."23. The same principles must apply to the case in hand. MPCB, which consists of experts, has considered all aspects of the matter in the light of the special status of Dahanu, being an ecologically fragile area. Various experts have expressed divergent views, and discussions were held before arriving at the conclusion. These views have been taken into account by DTEPA. The petitioners themselves had set up the Thermal Power Plant with a clear understanding that they would have to set up FGD Plant. The mere fact that another view is possible, inasmuch as presently there is no imminent threat to the environment, is no ground for interfering with the order of DTEPA. The setting up of FGD Plant is a preventive measure, and the petitioners cannot insist that the setting up of the FGD Plant must be insisted upon only after it is established that the emissions from the Thermal Power Plant have adversely affected environment in Dahanu region. It is precisely with a view to prevent such an occurrence that the aforesaid measure is insisted upon. We find that all relevant aspects have been considered by DTEPA, which is an expert body, and in a case of this nature, no interference by this Court is justified. Even if there is a difference of opinion between the experts, the view taken by DTEPA supporting one such view cannot be characterised as irrational or perverse. In any event, this Court cannot be called upon to substitute its views for those of an expert body. | 0[ds]18. DTEPA took note of the order passed by the Supreme Court in (Bittu Sehgalanother v. Union of Indiaothers)3, Writ Petition(C) No. 231 of 1994, in which the Court had directed NEERI to examine the effect of the Thermal Plants operating in Dahanu area. The recommendations by NEERI included the recommendation that the petitioners should install FGD system forthwith, in view of the limitedassimilative capacity. The finding of NEERI was challenged by the petitioners before DTEPA, and it was submitted that the DTEPA was not bound to implement those recommendations. It was only required to consider those recommendations. The matter was considered by DTEPA in detail, and it has been emphasised that cognizance must be taken of the ecological fragility of the Dahanu region. It was for this reasons that the State Government, as well as the Government of India, while granting approval, had insisted upon installation of FGD Plant. DTEPA was told by the petitioners that they had no desire to use gas in their plant. Initially, gas could not be used, as it was not available, but even when gas was available, the petitioners gave up the idea of using gas. DTEPA noted that Metropolis Gas Company(P) Ltd. had made it clear that it could supply gas, if request was made by any consumer. DTEPA therefore, recorded a finding that if efforts were made by the petitioners, gas could be made available in future, which it was expected to use in preference to coal. 19. The experts of DTEPA did not agree with the findings of Dr. Sudhakar of the Centre for Energy, Environment and Technology, Administrative Staff College of India, Hyderabad. There was a full discussion between Dr. Mishra of the National Institute of Hydrology, Roorkee, and the said Dr. Sudhakar. In his letter of 22nd April, 1999, Dr. Mishra had noted that it had been agreed upon that the computation of Sulphur Dioxide concentration should be made for stable atmospheric condition. Accordingly, the concentration of Sulphur Dioxide was computed, and results were enclosed, which showed that as envisaged, the concentration corresponding to stable atmospheric condition is higher than the concentration corresponding to neutral and unstable condition. Thus, the Gaussian dispersion model predicts concentration of Sulphur Dioxide which is more than the allowable limit. This view was expressed by Dr. Mishra after discussions with Dr. Sudhakar. 20. It may also be noticed that reliance earlier placed upon the mathematical model was not pressed before DTEPA, but relying upon the opinion of the Expert Member, Dr. V.V. Shrivaikar of MPCB, it was submitted that the FGD system may not be rated compulsory. This view, according to the petitioners, also supported the assessment made by World Bank Experts after their appraisal. It was also submitted that about 14 projects have been granted clearance for installation of Thermal Power Plants without the establishment of FGD Plants. 21. DTEPA found that the petitioners had given up the mathematical model, because, after discussions and after getting the conclusions from the mathematical model, it was discovered that it went against the interests of the petitioners. That was why the petitioners had changed their stand, contending that it would be an idle exercise, as the mathematical model itself was not proper. DTEPA also found that the status of the areas where Thermal Power Stations were allowed to come up without insisting upon installation of FGD Plant, was not comparable with the status of Dahanu, which is an environmentally fragile area, necessitating the issuance of the said Notification by the Government of India. After considering all aspects of the matter, DTEPA reached the followingOne of the initial tasks in carrying out an environmental assessment should include the use of appropriate air quality/dispersion models to estimate the impact of Thermal Power Plant project on the ambient concentration of different associated pollutants. Accordingly a steady state Gaussian Plume Dispersion equation has been used to compute the SO2 concentration for constant pollution emission rate of 45 metric tons per day and flow rate of emission of 15,65,928 m3/hour. "2. The other basic data, such as world (sic) velocity, wind direction, air temperature, reference height at which wind velocities have been measured, stability glass, mixing height, stack gas temperature, stack height etc. have been supplied by BSES and the hourly concentrations of SO2 have been computed and using these values daily concentrations have been computed. The results have been computed for unstable, neutral and stable atmospheric condition. The computed concentrations at many locations and at several times are found to exceed the allowable limit. "3. It is recognised that the field measurements of ambient air quality periodically collected by the BSES Ltd. as well as by the MPCB have been showing the air quality parameters within the prescribed standards. It is also recognised that the measurements are available at rather few number of locations and thus there exists a scant possibility that the location of the highest concentration would coincide with the ambient air quality measurement station/van. "4. Thus, based on the scientific evidence and inferring from the results obtained from the computer modelling and keeping all the limitations of the models as well as the limitations of the assumptions and input data in mind, based on the "Principle of Caution", these researchers have reached a conclusion that the BSES Ltd. should set up the FGD Plant at DTPS (Dahanu Thermal Power Station)." 22. As will be evident from the impugned order itself, all aspects of the matter have been carefully considered by DTEPA. The matter was heard on several days, and, apart from the experts of DTEPA, the experts of the Company and the experts ofNo. 4 and other experts were also consulted, and there was full discussion amongst the experts. After considering all aspects of the matter, the conclusion was reached that the petitioners must install FGD Plant. DTEPA also took note of the fact that while granting project clearance, the State Government, Government of India and MPCB had insisted upon the installation of FGD Plant. NEERI Report, as also assessment made by the experts of DTEPA, came to the conclusion that with a view to protect the environment, particularly in an environmentally fragile area, it was necessary that the FGD Plant be installed. The matters considered by DTEPA and the experts before it are highly technical matters, on which this Court cannot express its opinion. Since DTEPA has taken the decision after consideration of all aspects of the matter, interference by this Court in writ jurisdiction may not be justified. In fact, the same was the submission advanced by the petitioners when the grant of clearance to them for installation of the plant was challenged before this Court. While dismissing the writ petition filed by the Bombay Environmental Action Group, this CourtMr. Andhyarujina, learned Counsel for the Company (Bombay Suburban Electric Supply Company Limited), laid considerable emphasis on Courts power of judicial review in a matter and project of the instant nature. He contended that the Courts jurisdiction under Article 226 of the Constitution was not unlimited. If the Court found that the concerned Government authorities, both at the Centre and State level, have applied their minds to the relevant facts and circumstances and that there are no extraneous considerations weighing with the authorities, then, in the absence of mala fides or ulterior motive, it was not open to the Court to revoke the executive and/or administrative decisions merely and only because another view of the matter may also perhaps be a possible view. He contended that all the objections were duly considered. Indeed, the matter was even reconsidered in the light of subsequent representations. He emphasised that there was no allegation of any ulterior motive or any mala fides. In a matter such as this involving diverse pros and cons, technical and otherwise, the Courts should be extremely slow to interfere unless inevitable..........."17. Environmental issues are relevant and deserve serious consideration. But the needs of the environment require to be balanced with the needs of the community at large and the needs of a developing country. If one finds, as in this case, that all possible environmentalhave been taken, the check and control by way of judicial review should then come to an end. Once an elaborate and extensive exercise by all concerned including the environmentalists, the State and the Central authorities andis undertaken and effected and its end result judicially considered and reviewed, the matter thereafter should in all fairness stand concluded. Endless arguments, endless reviews and endless litigation in a matter such as this, can carry one to no end and may as well turn counter productive. While public interest litigation is a welcome development, there are nevertheless limits beyond which it may as well cease to be in public interest any further."The same view was reiterated by the Supreme Court when the matter was taken in appeal. In the judgment in the case of Dahanu Taluka Environment Protection Groupanother v. Bombay Suburban Electricity Supply Company Ltd.others reported in 1991(2) Supreme Court Cases 539, the Court observed :"2. The limitations, or more appropriately, therestrictions of a Court in considering such an issue as this (construction of a thermal power plant) have been set out by the Court in (Rural LitigationEntitlement Kendra v. State of U.P.)4, 1987(1) S.C.R. 637 .. See in this regard the connected detailed judgment of Ranganath Misra, J., (as he then was) in the same matter at 1987(1) S.C.R. 641, and (Sachidanand Pandey v. State of W.B.)5, 1987(2) S.C.C. 295. The observations in those decisions need not be reiterated here. It is sufficient to observe that it is primarily for the Governments concerned to consider the importance of public projects for the betterment of the conditions of living of the people on the one hand and the necessity for preservation of social and ecological balances, avoidance of deforestation and maintenance of purity of the atmosphere and water free from pollution on the other in the light of various factual, technical and other aspects that may be brought to its notice by various bodies of laymen, experts and public workers and strike a just balance between these two conflicting objectives. The Courts role is restricted to examine whether the Government has taken into account all relevant aspects and has neither ignored nor overlooked any material considerations nor been influenced by extraneous or immaterial considerations in arriving at its final decision."23. The same principles must apply to the case in hand. MPCB, which consists of experts, has considered all aspects of the matter in the light of the special status of Dahanu, being an ecologically fragile area. Various experts have expressed divergent views, and discussions were held before arriving at the conclusion. These views have been taken into account by DTEPA. The petitioners themselves had set up the Thermal Power Plant with a clear understanding that they would have to set up FGD Plant. The mere fact that another view is possible, inasmuch as presently there is no imminent threat to the environment, is no ground for interfering with the order of DTEPA. The setting up of FGD Plant is a preventive measure, and the petitioners cannot insist that the setting up of the FGD Plant must be insisted upon only after it is established that the emissions from the Thermal Power Plant have adversely affected environment in Dahanu region. It is precisely with a view to prevent such an occurrence that the aforesaid measure is insisted upon. We find that all relevant aspects have been considered by DTEPA, which is an expert body, and in a case of this nature, no interference by this Court is justified. Even if there is a difference of opinion between the experts, the view taken by DTEPA supporting one such view cannot be characterised as irrational or perverse. In any event, this Court cannot be called upon to substitute its views for those of an expert body. | 0 | 6,457 | 2,239 | ### 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:
of FGD Plant. NEERI Report, as also assessment made by the experts of DTEPA, came to the conclusion that with a view to protect the environment, particularly in an environmentally fragile area, it was necessary that the FGD Plant be installed. The matters considered by DTEPA and the experts before it are highly technical matters, on which this Court cannot express its opinion. Since DTEPA has taken the decision after consideration of all aspects of the matter, interference by this Court in writ jurisdiction may not be justified. In fact, the same was the submission advanced by the petitioners when the grant of clearance to them for installation of the plant was challenged before this Court. While dismissing the writ petition filed by the Bombay Environmental Action Group, this Court observed:---"14. Mr. Andhyarujina, learned Counsel for the Company (Bombay Suburban Electric Supply Company Limited), laid considerable emphasis on Courts power of judicial review in a matter and project of the instant nature. He contended that the Courts jurisdiction under Article 226 of the Constitution was not unlimited. If the Court found that the concerned Government authorities, both at the Centre and State level, have applied their minds to the relevant facts and circumstances and that there are no extraneous considerations weighing with the authorities, then, in the absence of mala fides or ulterior motive, it was not open to the Court to revoke the executive and/or administrative decisions merely and only because another view of the matter may also perhaps be a possible view. He contended that all the objections were duly considered. Indeed, the matter was even reconsidered in the light of subsequent representations. He emphasised that there was no allegation of any ulterior motive or any mala fides. In a matter such as this involving diverse pros and cons, technical and otherwise, the Courts should be extremely slow to interfere unless inevitable..........."17. Environmental issues are relevant and deserve serious consideration. But the needs of the environment require to be balanced with the needs of the community at large and the needs of a developing country. If one finds, as in this case, that all possible environmental safe-guards have been taken, the check and control by way of judicial review should then come to an end. Once an elaborate and extensive exercise by all concerned including the environmentalists, the State and the Central authorities and expert-bodies is undertaken and effected and its end result judicially considered and reviewed, the matter thereafter should in all fairness stand concluded. Endless arguments, endless reviews and endless litigation in a matter such as this, can carry one to no end and may as well turn counter productive. While public interest litigation is a welcome development, there are nevertheless limits beyond which it may as well cease to be in public interest any further."The same view was reiterated by the Supreme Court when the matter was taken in appeal. In the judgment in the case of Dahanu Taluka Environment Protection Group & another v. Bombay Suburban Electricity Supply Company Ltd. & others reported in 1991(2) Supreme Court Cases 539, the Court observed :"2. The limitations, or more appropriately, the self-imposed restrictions of a Court in considering such an issue as this (construction of a thermal power plant) have been set out by the Court in (Rural Litigation & Entitlement Kendra v. State of U.P.)4, 1987(1) S.C.R. 637 .. See in this regard the connected detailed judgment of Ranganath Misra, J., (as he then was) in the same matter at 1987(1) S.C.R. 641, and (Sachidanand Pandey v. State of W.B.)5, 1987(2) S.C.C. 295. The observations in those decisions need not be reiterated here. It is sufficient to observe that it is primarily for the Governments concerned to consider the importance of public projects for the betterment of the conditions of living of the people on the one hand and the necessity for preservation of social and ecological balances, avoidance of deforestation and maintenance of purity of the atmosphere and water free from pollution on the other in the light of various factual, technical and other aspects that may be brought to its notice by various bodies of laymen, experts and public workers and strike a just balance between these two conflicting objectives. The Courts role is restricted to examine whether the Government has taken into account all relevant aspects and has neither ignored nor overlooked any material considerations nor been influenced by extraneous or immaterial considerations in arriving at its final decision."23. The same principles must apply to the case in hand. MPCB, which consists of experts, has considered all aspects of the matter in the light of the special status of Dahanu, being an ecologically fragile area. Various experts have expressed divergent views, and discussions were held before arriving at the conclusion. These views have been taken into account by DTEPA. The petitioners themselves had set up the Thermal Power Plant with a clear understanding that they would have to set up FGD Plant. The mere fact that another view is possible, inasmuch as presently there is no imminent threat to the environment, is no ground for interfering with the order of DTEPA. The setting up of FGD Plant is a preventive measure, and the petitioners cannot insist that the setting up of the FGD Plant must be insisted upon only after it is established that the emissions from the Thermal Power Plant have adversely affected environment in Dahanu region. It is precisely with a view to prevent such an occurrence that the aforesaid measure is insisted upon. We find that all relevant aspects have been considered by DTEPA, which is an expert body, and in a case of this nature, no interference by this Court is justified. Even if there is a difference of opinion between the experts, the view taken by DTEPA supporting one such view cannot be characterised as irrational or perverse. In any event, this Court cannot be called upon to substitute its views for those of an expert body.
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0
### Explanation:
clearance, the State Government, Government of India and MPCB had insisted upon the installation of FGD Plant. NEERI Report, as also assessment made by the experts of DTEPA, came to the conclusion that with a view to protect the environment, particularly in an environmentally fragile area, it was necessary that the FGD Plant be installed. The matters considered by DTEPA and the experts before it are highly technical matters, on which this Court cannot express its opinion. Since DTEPA has taken the decision after consideration of all aspects of the matter, interference by this Court in writ jurisdiction may not be justified. In fact, the same was the submission advanced by the petitioners when the grant of clearance to them for installation of the plant was challenged before this Court. While dismissing the writ petition filed by the Bombay Environmental Action Group, this CourtMr. Andhyarujina, learned Counsel for the Company (Bombay Suburban Electric Supply Company Limited), laid considerable emphasis on Courts power of judicial review in a matter and project of the instant nature. He contended that the Courts jurisdiction under Article 226 of the Constitution was not unlimited. If the Court found that the concerned Government authorities, both at the Centre and State level, have applied their minds to the relevant facts and circumstances and that there are no extraneous considerations weighing with the authorities, then, in the absence of mala fides or ulterior motive, it was not open to the Court to revoke the executive and/or administrative decisions merely and only because another view of the matter may also perhaps be a possible view. He contended that all the objections were duly considered. Indeed, the matter was even reconsidered in the light of subsequent representations. He emphasised that there was no allegation of any ulterior motive or any mala fides. In a matter such as this involving diverse pros and cons, technical and otherwise, the Courts should be extremely slow to interfere unless inevitable..........."17. Environmental issues are relevant and deserve serious consideration. But the needs of the environment require to be balanced with the needs of the community at large and the needs of a developing country. If one finds, as in this case, that all possible environmentalhave been taken, the check and control by way of judicial review should then come to an end. Once an elaborate and extensive exercise by all concerned including the environmentalists, the State and the Central authorities andis undertaken and effected and its end result judicially considered and reviewed, the matter thereafter should in all fairness stand concluded. Endless arguments, endless reviews and endless litigation in a matter such as this, can carry one to no end and may as well turn counter productive. While public interest litigation is a welcome development, there are nevertheless limits beyond which it may as well cease to be in public interest any further."The same view was reiterated by the Supreme Court when the matter was taken in appeal. In the judgment in the case of Dahanu Taluka Environment Protection Groupanother v. Bombay Suburban Electricity Supply Company Ltd.others reported in 1991(2) Supreme Court Cases 539, the Court observed :"2. The limitations, or more appropriately, therestrictions of a Court in considering such an issue as this (construction of a thermal power plant) have been set out by the Court in (Rural LitigationEntitlement Kendra v. State of U.P.)4, 1987(1) S.C.R. 637 .. See in this regard the connected detailed judgment of Ranganath Misra, J., (as he then was) in the same matter at 1987(1) S.C.R. 641, and (Sachidanand Pandey v. State of W.B.)5, 1987(2) S.C.C. 295. The observations in those decisions need not be reiterated here. It is sufficient to observe that it is primarily for the Governments concerned to consider the importance of public projects for the betterment of the conditions of living of the people on the one hand and the necessity for preservation of social and ecological balances, avoidance of deforestation and maintenance of purity of the atmosphere and water free from pollution on the other in the light of various factual, technical and other aspects that may be brought to its notice by various bodies of laymen, experts and public workers and strike a just balance between these two conflicting objectives. The Courts role is restricted to examine whether the Government has taken into account all relevant aspects and has neither ignored nor overlooked any material considerations nor been influenced by extraneous or immaterial considerations in arriving at its final decision."23. The same principles must apply to the case in hand. MPCB, which consists of experts, has considered all aspects of the matter in the light of the special status of Dahanu, being an ecologically fragile area. Various experts have expressed divergent views, and discussions were held before arriving at the conclusion. These views have been taken into account by DTEPA. The petitioners themselves had set up the Thermal Power Plant with a clear understanding that they would have to set up FGD Plant. The mere fact that another view is possible, inasmuch as presently there is no imminent threat to the environment, is no ground for interfering with the order of DTEPA. The setting up of FGD Plant is a preventive measure, and the petitioners cannot insist that the setting up of the FGD Plant must be insisted upon only after it is established that the emissions from the Thermal Power Plant have adversely affected environment in Dahanu region. It is precisely with a view to prevent such an occurrence that the aforesaid measure is insisted upon. We find that all relevant aspects have been considered by DTEPA, which is an expert body, and in a case of this nature, no interference by this Court is justified. Even if there is a difference of opinion between the experts, the view taken by DTEPA supporting one such view cannot be characterised as irrational or perverse. In any event, this Court cannot be called upon to substitute its views for those of an expert body.
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THE ASSAM PUBLIC SERVICE COMMISSION Vs. PRANJAL KUMAR SARMA | relevant dates, the appellants would argue that the process of selection in the present case had commenced with the issuance of advertisement well before the 2019 Procedure was notified with effect from 01.04.2019 and therefore, the selection should be in accordance with the 2010 Rules which prevailed on the date of the advertisement. 9.2 The appellant?s counsel then argues that alteration of the selection norms by the APSC through the 2019 Procedure which has prospective application, should have no bearing on the ongoing process, on account of the savings clause incorporated in the 2019 Procedure. 10.1 Per contra Ms. Rekha Pandey, learned counsel appearing on behalf of respondent Nos. 1 to 4 (writ petitioners) by referring to the preamble of the 2019 Procedure argues that the new Procedure was adopted to bring in more transparency in the conducting of recruitment by the Commission, on account of the deficiencies noticed in the process in the 2010 Rules. She accordingly argues that adopting the 2019 Procedure for the viva-voce segment of the recruitment exercise would ensure weightage for merit and avoidance of arbitrary selection, which was possible under the 2010 Rules. 10.2 The respondents counsel then refers to Rules 29 and 30 of the 2010 Rules to highlight that the procedure envisaged did not provide adequate weightage to test the merit of the candidates, on their academic/professional qualification, service experience, etc. and therefore, the 2019 Procedure should govern the next phase of selection. 11. To deal with the rival submission, the relevant clauses in the process of selection envisaged under the 2019 Procedure, will bear consideration. The concept of negative marking is introduced for the first time under Clause 4(B)(ii) which provides that for each wrong answer, @ 0.25 marks are deducted against each question. Besides the Clause 4(B)(vi) stipulates that marks for the interview shall not exceed 12.2 per cent of the total marks. The screening test in which the respondents and other candidates appeared on 30.06.2019 under the 2010 Rules as earlier noted, had no negative marking and, therefore, the candidates could take the risk of guessing the correct answer in the multiple choice test, without the fear of being penalised for incorrect answer. 12. In the above backdrop, if the next segment of selection is to be conducted under the 2019 Procedure, the performance of the candidate in the aforenoted screening test to the extent of 87.8 per cent of the total marks, will determine the final selection of the candidate. The question, therefore, is whether this would be fair on the candidates when the performance of few would be determined more by lucky guess and the real merit may have no role in the aggregate score. The other relevant question is whether the method of selection should be permitted to be changed midway, by adopting the 2019 Procedure incorporated with effect from 01.04.2019 for the vacancies, which were advertised on 21.12.2018. 13. The law with regard to applicability of the Rules which are brought anew during the selection process have been crystalized by this Court. It has been held that the norms existing on the date when the process of selection begins, will control the selection and the alteration to the norms would not affect the ongoing process unless the new Rules are to be given retrospective effect. (See State of Bihar and Others vs. Mithilesh Kumar (2010) 13 SCC 467 ). Similarly in N.T. Devin Katti and Others vs. Karnataka Public Service Commission and Others (1990) 3 SCC 157 , this Court held that a candidate has a limited right of being considered for selection in accordance with the Rules as they existed on the date of advertisement and he cannot be deprived of that limited right by amendment of the Rules during the pendency of the selection, unless the Rules are to be applied retrospectively. 14. If we proceed with the above enunciation of the law in Mithilesh Kumar (supra) and N.T. Devin Katti (supra), the conclusion is inevitable that for the current recruitment process for which advertisement was issued on 21.12.2018, the 2019 Procedure (which came into effect from 01.04.2019) can have no application, particularly when the first phase of the selection i.e. the screening test was conducted under the 2010 Rules. 15. One must also be conscious of the savings Clause 12.2 incorporated in the 2019 Procedure which makes it abundantly clear that the interviews/selection or competitive examinations pending on the date of commencement of the Procedure should be continued and completed, in accordance with the 2010 Rules. 16. In the present case, if the contention advanced by the respondents is accepted and the next segment of the process of selection is carried out under the 2019 Procedure, it will give rise to an anomalous situation inasmuch as the screening test which was conducted without negative marking, under the 2010 Rules, without provisions for negative markings, will have a major bearing in the final outcome of selection. This would definitely prejudice the candidates who have undertaken exams under 2010 Rules. The consistent law on the issue also makes it clear that recruitment process pursuant to the advertisement issued by the APSC on 21 st December, 2018 must necessarily be conducted under the selection norms as applicable on the date of the advertisement. Moreover, having regard Rule 29 and Rule 30 of the 2010 Rules, it must also be said that merit of the candidates would definitely be assessed in the selection exercise, undertaken by the APSC. The APSC is also capable of conducting a fair selection and we believe that they will keep in mind, the lawful expectation and the constitutional mandate. 17. If the direction in the impugned judgment of the High Court is to be followed for conducting the next segment of the selection, for the single recruitment process the candidates will be evaluated by two different sets of procedure i.e. the 2010 Rules and the 2019 Procedure and such dual norms must not in our opinion, govern the ongoing recruitment process. | 1[ds]The screening test in which the respondents and other candidates appeared on 30.06.2019 under the 2010 Rules as earlier noted, had no negative marking and, therefore, the candidates could take the risk of guessing the correct answer in the multiple choice test, without the fear of being penalised for incorrect answer.If we proceed with the above enunciation of the law in Mithilesh Kumar (supra) and N.T. Devin Katti (supra), the conclusion is inevitable that for the current recruitment process for which advertisement was issued on 21.12.2018, the 2019 Procedure (which came into effect from 01.04.2019) can have no application, particularly when the first phase of the selection i.e. the screening test was conducted under the 2010 Rules.In the present case, if the contention advanced by the respondents is accepted and the next segment of the process of selection is carried out under the 2019 Procedure, it will give rise to an anomalous situation inasmuch as the screening test which was conducted without negative marking, under the 2010 Rules, without provisions for negative markings, will have a major bearing in the final outcome of selection. This would definitely prejudice the candidates who have undertaken exams under 2010 Rules. The consistent law on the issue also makes it clear that recruitment process pursuant to the advertisement issued by the APSC on 21 st December, 2018 must necessarily be conducted under the selection norms as applicable on the date of the advertisement. Moreover, having regard Rule 29 and Rule 30 of the 2010 Rules, it must also be said that merit of the candidates would definitely be assessed in the selection exercise, undertaken by the APSC. The APSC is also capable of conducting a fair selection and we believe that they will keep in mind, the lawful expectation and the constitutional mandate.If the direction in the impugned judgment of the High Court is to be followed for conducting the next segment of the selection, for the single recruitment process the candidates will be evaluated by two different sets of procedure i.e. the 2010 Rules and the 2019 Procedure and such dual norms must not in our opinion, govern the ongoing recruitment process. | 1 | 2,392 | 396 | ### 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:
relevant dates, the appellants would argue that the process of selection in the present case had commenced with the issuance of advertisement well before the 2019 Procedure was notified with effect from 01.04.2019 and therefore, the selection should be in accordance with the 2010 Rules which prevailed on the date of the advertisement. 9.2 The appellant?s counsel then argues that alteration of the selection norms by the APSC through the 2019 Procedure which has prospective application, should have no bearing on the ongoing process, on account of the savings clause incorporated in the 2019 Procedure. 10.1 Per contra Ms. Rekha Pandey, learned counsel appearing on behalf of respondent Nos. 1 to 4 (writ petitioners) by referring to the preamble of the 2019 Procedure argues that the new Procedure was adopted to bring in more transparency in the conducting of recruitment by the Commission, on account of the deficiencies noticed in the process in the 2010 Rules. She accordingly argues that adopting the 2019 Procedure for the viva-voce segment of the recruitment exercise would ensure weightage for merit and avoidance of arbitrary selection, which was possible under the 2010 Rules. 10.2 The respondents counsel then refers to Rules 29 and 30 of the 2010 Rules to highlight that the procedure envisaged did not provide adequate weightage to test the merit of the candidates, on their academic/professional qualification, service experience, etc. and therefore, the 2019 Procedure should govern the next phase of selection. 11. To deal with the rival submission, the relevant clauses in the process of selection envisaged under the 2019 Procedure, will bear consideration. The concept of negative marking is introduced for the first time under Clause 4(B)(ii) which provides that for each wrong answer, @ 0.25 marks are deducted against each question. Besides the Clause 4(B)(vi) stipulates that marks for the interview shall not exceed 12.2 per cent of the total marks. The screening test in which the respondents and other candidates appeared on 30.06.2019 under the 2010 Rules as earlier noted, had no negative marking and, therefore, the candidates could take the risk of guessing the correct answer in the multiple choice test, without the fear of being penalised for incorrect answer. 12. In the above backdrop, if the next segment of selection is to be conducted under the 2019 Procedure, the performance of the candidate in the aforenoted screening test to the extent of 87.8 per cent of the total marks, will determine the final selection of the candidate. The question, therefore, is whether this would be fair on the candidates when the performance of few would be determined more by lucky guess and the real merit may have no role in the aggregate score. The other relevant question is whether the method of selection should be permitted to be changed midway, by adopting the 2019 Procedure incorporated with effect from 01.04.2019 for the vacancies, which were advertised on 21.12.2018. 13. The law with regard to applicability of the Rules which are brought anew during the selection process have been crystalized by this Court. It has been held that the norms existing on the date when the process of selection begins, will control the selection and the alteration to the norms would not affect the ongoing process unless the new Rules are to be given retrospective effect. (See State of Bihar and Others vs. Mithilesh Kumar (2010) 13 SCC 467 ). Similarly in N.T. Devin Katti and Others vs. Karnataka Public Service Commission and Others (1990) 3 SCC 157 , this Court held that a candidate has a limited right of being considered for selection in accordance with the Rules as they existed on the date of advertisement and he cannot be deprived of that limited right by amendment of the Rules during the pendency of the selection, unless the Rules are to be applied retrospectively. 14. If we proceed with the above enunciation of the law in Mithilesh Kumar (supra) and N.T. Devin Katti (supra), the conclusion is inevitable that for the current recruitment process for which advertisement was issued on 21.12.2018, the 2019 Procedure (which came into effect from 01.04.2019) can have no application, particularly when the first phase of the selection i.e. the screening test was conducted under the 2010 Rules. 15. One must also be conscious of the savings Clause 12.2 incorporated in the 2019 Procedure which makes it abundantly clear that the interviews/selection or competitive examinations pending on the date of commencement of the Procedure should be continued and completed, in accordance with the 2010 Rules. 16. In the present case, if the contention advanced by the respondents is accepted and the next segment of the process of selection is carried out under the 2019 Procedure, it will give rise to an anomalous situation inasmuch as the screening test which was conducted without negative marking, under the 2010 Rules, without provisions for negative markings, will have a major bearing in the final outcome of selection. This would definitely prejudice the candidates who have undertaken exams under 2010 Rules. The consistent law on the issue also makes it clear that recruitment process pursuant to the advertisement issued by the APSC on 21 st December, 2018 must necessarily be conducted under the selection norms as applicable on the date of the advertisement. Moreover, having regard Rule 29 and Rule 30 of the 2010 Rules, it must also be said that merit of the candidates would definitely be assessed in the selection exercise, undertaken by the APSC. The APSC is also capable of conducting a fair selection and we believe that they will keep in mind, the lawful expectation and the constitutional mandate. 17. If the direction in the impugned judgment of the High Court is to be followed for conducting the next segment of the selection, for the single recruitment process the candidates will be evaluated by two different sets of procedure i.e. the 2010 Rules and the 2019 Procedure and such dual norms must not in our opinion, govern the ongoing recruitment process.
### Response:
1
### Explanation:
The screening test in which the respondents and other candidates appeared on 30.06.2019 under the 2010 Rules as earlier noted, had no negative marking and, therefore, the candidates could take the risk of guessing the correct answer in the multiple choice test, without the fear of being penalised for incorrect answer.If we proceed with the above enunciation of the law in Mithilesh Kumar (supra) and N.T. Devin Katti (supra), the conclusion is inevitable that for the current recruitment process for which advertisement was issued on 21.12.2018, the 2019 Procedure (which came into effect from 01.04.2019) can have no application, particularly when the first phase of the selection i.e. the screening test was conducted under the 2010 Rules.In the present case, if the contention advanced by the respondents is accepted and the next segment of the process of selection is carried out under the 2019 Procedure, it will give rise to an anomalous situation inasmuch as the screening test which was conducted without negative marking, under the 2010 Rules, without provisions for negative markings, will have a major bearing in the final outcome of selection. This would definitely prejudice the candidates who have undertaken exams under 2010 Rules. The consistent law on the issue also makes it clear that recruitment process pursuant to the advertisement issued by the APSC on 21 st December, 2018 must necessarily be conducted under the selection norms as applicable on the date of the advertisement. Moreover, having regard Rule 29 and Rule 30 of the 2010 Rules, it must also be said that merit of the candidates would definitely be assessed in the selection exercise, undertaken by the APSC. The APSC is also capable of conducting a fair selection and we believe that they will keep in mind, the lawful expectation and the constitutional mandate.If the direction in the impugned judgment of the High Court is to be followed for conducting the next segment of the selection, for the single recruitment process the candidates will be evaluated by two different sets of procedure i.e. the 2010 Rules and the 2019 Procedure and such dual norms must not in our opinion, govern the ongoing recruitment process.
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Raghu Nath Singh Vs. Krishna Chandra Sharma | Ex. R-12 remained un-contradicted by the appellant. 15. Besides these pamphlets, comments also appeared in the local newspapers, such as the issues of June 14 and 16, 1967, of Dainik Jagran and in the issue of June 15, 1967, Manas Utthan. The Dainik Jagran of June 14, 1967, reported the speech of minister Sharma in support of the levy and the welcome speech delivered in that meeting by the appellant in which he was reported to have extended his support of the levy. On June 16, 1967, the appellant presided over a meeting at Bar which was addressed by the same minister. Manas Utthan, in its issue of June 15, 1967, came out with an editorial recalling the earlier protests of the appellant against the levy, placing in juxtaposition his demand for a higher procurement price for wheat at a meeting of the Collectors. The innuendo was that the appellant as a landholder was interested in obtaining at high a price for the wheat grown by him as was possible. It also hinted that the appellant had abandoned his opposition to the levy on being pulled up by his party ministers in the Government."The X-ray of his political wisdom" was how the appellants attitude towards the levy dubbed by the editorial. 16. The respondents case was that besides seeing these written comments he had gone round the constituency where he had heard a number of persons commenting about the change in the appellants attitude towards the levy and ascribing that change to his having secured exemption from the levy and taqavi for himself, his relations and those serving him. He examined two of them, namely, R. Ws. 24 and 32, but curiously no questions were asked to them as to whether they had conveyed any information to him about the appellant having secured the said exemption and the taqavi loan for himself. Mr. Tripathi, therefore, was right in his comment that the respondent had failed to establish this part of his case. Nevertheless, considering the controversy which was going on in regard to the appellants attitude towards the levy, it would be surprising if the respondent had not heard in the constituency his own partymen attributing for the shift in the appellants attitude towards the levy the same reasons which the authors of the pamphlet Ex. R-12 had set out. 17. According to the respondent, in view of this kind of talk going on in the constituency, he visited the Tehsil office to make inquires Although he could not find there any application for taqavi loan by the appellant himself, he could ascertain that it was due to the appellants intervention that exemptions from levy and taqavi loans were granted by that office. 18. There could be no dispute that the appellants brother, Gajraj Singh, had applied for and received taqavi loan. Altogether a sum of Rs. 9, 000/- had been distributed as taqavi amongst the cultivators of Madanpur. Though the appellant had not personally obtained any such loan, the inquiry by the respondent at the tehsil office had disclosed that it was due to his intervention that these loans had been granted. There must have been considerable talk about the appellant being responsible for these loans as well as exemptions from the levy amongst the people of Madanpur and the neighbouring areas. 19. The evidence shows that the appellant and his brother, Gajraj Singh, were separate and were no longer members of a joint Hindu family. Though they were separate in food, residence and estate, there was no division of the lands held by them by metes and bounds. According to the evidence of the appellant, the lands held by him were comprised of 4 khatas. Gajraj had deposed that 3 of these 4 khatas were in the joint names of the appellant. Gajraj and certain other relations, and the 4th khata was in the joint names of the appellant and Gajrajs son. A taqavi loan, being a distress loan for the betterment of the land, though granted in the name of Gajraj Singh, would appear to benefit, at lest indirectly, the appellant also, as Gajraj Singh could not have utilised such a loan for any particular portion of the land for his exclusive benefit as the land had not yet been divided by metes and bounds. In these circumstances, even if a person had not the proof that the appellant had obtained the taqavi loan for himself, he was likely to draw the inference that the loan in the name of the brother and other family members was in fact for the benefit of the appellant also and therefore such a loan was as good as a loan to the appellant and for his benefit. 20. The question is not one of the truth of the statement that the appellant was the recipient of a large amount by way of taqavi loan, but of the absence of belief on the part of the respondent that the statement was true. In the background of the pamphleteering that had gone on, the controversy and the loan obtained by the appellants brother and other relations, and in particular the allegations contained in Ex. R-12 which remained uncontradicted all throughout, and lastly, the fact that it was on account of the appellants intervention that exemption from the levy and taqavi loans had become possible, it is impossible to rule out altogether a belief on the part of the respondent that the statement that the appellant had obtained monetary advantage was true. In any case, if the High Court on an appraisal of evidence before it arrived at such a conclusion, an interference at our hands with such a conclusion would require some compelling reasons. We have none such compelling reasons to warrant such an interference. 21. That being the position, we have to hold that the appellant failed to establish that the respondent did not believe the said statement to be true as required by Section 123 (4) of the Act. 22. | 0[ds]10. The levy of foodgrains was imposed by the U.P. Rabi Foodgrains Levy (On Producers) Order issued on April 8, 1957. The evidence showed that several cultivators at first refused to honour the levy, but they paid it up subsequently on action having been taken against them by the authorities. In some cases even arrests were effected. The appellant,, did not deposit any goodgrains as there was an exemption in respect of his lands. Therefore, the statement that he did not give a single foodgrain would not be incorrect. There was, however, no evidence to establish that it was at his instance or persuasion that several cultivators paid up their share of the levy. That part of the statement that he made the cultivators pay up their contribution was, therefore, not trueOn this question, although counsel conceded that the statement in the matter of levy did not relate to the personal character or conduct of the appellant, the two statements were so inextricably connected with each other that the evidence with regard to the one inevitably becomes relevant on the other. There is ample evidence on record, so clear that it would be somewhat superfluous to enter into its details, showing that the appellant had at first opposed the levy through meetings and even demonstrations, but that later on his attitude softened and he actually gave his support to it at meetings addressed by ministers where he either presided or was present or was presentMr. Tripathi, therefore, was right in his comment that the respondent had failed to establish this part of his case. Nevertheless, considering the controversy which was going on in regard to the appellants attitude towards the levy, it would be surprising if the respondent had not heard in the constituency his own partymen attributing for the shift in the appellants attitude towards the levy the same reasons which the authors of the pamphlet Ex.2 had set out19. The evidence shows that the appellant and his brother, Gajraj Singh, were separate and were no longer members of a joint Hindu family. Though they were separate in food, residence and estate, there was no division of the lands held by them by metes and bounds20. The question is not one of the truth of the statement that the appellant was the recipient of a large amount by way of taqavi loan, but of the absence of belief on the part of the respondent that the statement was true. In the background of the pamphleteering that had gone on, the controversy and the loan obtained by the appellants brother and other relations, and in particular the allegations contained in Ex.2 which remained uncontradicted all throughout, and lastly, the fact that it was on account of the appellants intervention that exemption from the levy and taqavi loans had become possible, it is impossible to rule out altogether a belief on the part of the respondent that the statement that the appellant had obtained monetary advantage was true. In any case, if the High Court on an appraisal of evidence before it arrived at such a conclusion, an interference at our hands with such a conclusion would require some compelling reasons. We have none such compelling reasons to warrant such an interference21. That being the position, we have to hold that the appellant failed to establish that the respondent did not believe the said statement to be true as required by Section 123 (4) of the Act. | 0 | 3,988 | 634 | ### 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:
Ex. R-12 remained un-contradicted by the appellant. 15. Besides these pamphlets, comments also appeared in the local newspapers, such as the issues of June 14 and 16, 1967, of Dainik Jagran and in the issue of June 15, 1967, Manas Utthan. The Dainik Jagran of June 14, 1967, reported the speech of minister Sharma in support of the levy and the welcome speech delivered in that meeting by the appellant in which he was reported to have extended his support of the levy. On June 16, 1967, the appellant presided over a meeting at Bar which was addressed by the same minister. Manas Utthan, in its issue of June 15, 1967, came out with an editorial recalling the earlier protests of the appellant against the levy, placing in juxtaposition his demand for a higher procurement price for wheat at a meeting of the Collectors. The innuendo was that the appellant as a landholder was interested in obtaining at high a price for the wheat grown by him as was possible. It also hinted that the appellant had abandoned his opposition to the levy on being pulled up by his party ministers in the Government."The X-ray of his political wisdom" was how the appellants attitude towards the levy dubbed by the editorial. 16. The respondents case was that besides seeing these written comments he had gone round the constituency where he had heard a number of persons commenting about the change in the appellants attitude towards the levy and ascribing that change to his having secured exemption from the levy and taqavi for himself, his relations and those serving him. He examined two of them, namely, R. Ws. 24 and 32, but curiously no questions were asked to them as to whether they had conveyed any information to him about the appellant having secured the said exemption and the taqavi loan for himself. Mr. Tripathi, therefore, was right in his comment that the respondent had failed to establish this part of his case. Nevertheless, considering the controversy which was going on in regard to the appellants attitude towards the levy, it would be surprising if the respondent had not heard in the constituency his own partymen attributing for the shift in the appellants attitude towards the levy the same reasons which the authors of the pamphlet Ex. R-12 had set out. 17. According to the respondent, in view of this kind of talk going on in the constituency, he visited the Tehsil office to make inquires Although he could not find there any application for taqavi loan by the appellant himself, he could ascertain that it was due to the appellants intervention that exemptions from levy and taqavi loans were granted by that office. 18. There could be no dispute that the appellants brother, Gajraj Singh, had applied for and received taqavi loan. Altogether a sum of Rs. 9, 000/- had been distributed as taqavi amongst the cultivators of Madanpur. Though the appellant had not personally obtained any such loan, the inquiry by the respondent at the tehsil office had disclosed that it was due to his intervention that these loans had been granted. There must have been considerable talk about the appellant being responsible for these loans as well as exemptions from the levy amongst the people of Madanpur and the neighbouring areas. 19. The evidence shows that the appellant and his brother, Gajraj Singh, were separate and were no longer members of a joint Hindu family. Though they were separate in food, residence and estate, there was no division of the lands held by them by metes and bounds. According to the evidence of the appellant, the lands held by him were comprised of 4 khatas. Gajraj had deposed that 3 of these 4 khatas were in the joint names of the appellant. Gajraj and certain other relations, and the 4th khata was in the joint names of the appellant and Gajrajs son. A taqavi loan, being a distress loan for the betterment of the land, though granted in the name of Gajraj Singh, would appear to benefit, at lest indirectly, the appellant also, as Gajraj Singh could not have utilised such a loan for any particular portion of the land for his exclusive benefit as the land had not yet been divided by metes and bounds. In these circumstances, even if a person had not the proof that the appellant had obtained the taqavi loan for himself, he was likely to draw the inference that the loan in the name of the brother and other family members was in fact for the benefit of the appellant also and therefore such a loan was as good as a loan to the appellant and for his benefit. 20. The question is not one of the truth of the statement that the appellant was the recipient of a large amount by way of taqavi loan, but of the absence of belief on the part of the respondent that the statement was true. In the background of the pamphleteering that had gone on, the controversy and the loan obtained by the appellants brother and other relations, and in particular the allegations contained in Ex. R-12 which remained uncontradicted all throughout, and lastly, the fact that it was on account of the appellants intervention that exemption from the levy and taqavi loans had become possible, it is impossible to rule out altogether a belief on the part of the respondent that the statement that the appellant had obtained monetary advantage was true. In any case, if the High Court on an appraisal of evidence before it arrived at such a conclusion, an interference at our hands with such a conclusion would require some compelling reasons. We have none such compelling reasons to warrant such an interference. 21. That being the position, we have to hold that the appellant failed to establish that the respondent did not believe the said statement to be true as required by Section 123 (4) of the Act. 22.
### Response:
0
### Explanation:
10. The levy of foodgrains was imposed by the U.P. Rabi Foodgrains Levy (On Producers) Order issued on April 8, 1957. The evidence showed that several cultivators at first refused to honour the levy, but they paid it up subsequently on action having been taken against them by the authorities. In some cases even arrests were effected. The appellant,, did not deposit any goodgrains as there was an exemption in respect of his lands. Therefore, the statement that he did not give a single foodgrain would not be incorrect. There was, however, no evidence to establish that it was at his instance or persuasion that several cultivators paid up their share of the levy. That part of the statement that he made the cultivators pay up their contribution was, therefore, not trueOn this question, although counsel conceded that the statement in the matter of levy did not relate to the personal character or conduct of the appellant, the two statements were so inextricably connected with each other that the evidence with regard to the one inevitably becomes relevant on the other. There is ample evidence on record, so clear that it would be somewhat superfluous to enter into its details, showing that the appellant had at first opposed the levy through meetings and even demonstrations, but that later on his attitude softened and he actually gave his support to it at meetings addressed by ministers where he either presided or was present or was presentMr. Tripathi, therefore, was right in his comment that the respondent had failed to establish this part of his case. Nevertheless, considering the controversy which was going on in regard to the appellants attitude towards the levy, it would be surprising if the respondent had not heard in the constituency his own partymen attributing for the shift in the appellants attitude towards the levy the same reasons which the authors of the pamphlet Ex.2 had set out19. The evidence shows that the appellant and his brother, Gajraj Singh, were separate and were no longer members of a joint Hindu family. Though they were separate in food, residence and estate, there was no division of the lands held by them by metes and bounds20. The question is not one of the truth of the statement that the appellant was the recipient of a large amount by way of taqavi loan, but of the absence of belief on the part of the respondent that the statement was true. In the background of the pamphleteering that had gone on, the controversy and the loan obtained by the appellants brother and other relations, and in particular the allegations contained in Ex.2 which remained uncontradicted all throughout, and lastly, the fact that it was on account of the appellants intervention that exemption from the levy and taqavi loans had become possible, it is impossible to rule out altogether a belief on the part of the respondent that the statement that the appellant had obtained monetary advantage was true. In any case, if the High Court on an appraisal of evidence before it arrived at such a conclusion, an interference at our hands with such a conclusion would require some compelling reasons. We have none such compelling reasons to warrant such an interference21. That being the position, we have to hold that the appellant failed to establish that the respondent did not believe the said statement to be true as required by Section 123 (4) of the Act.
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Gujarat Maritime Board Vs. L&T Infrastructure Development Projects Ltd. | acts purely in its executive capacity and is bound by the obligations of fairness.70.2. State in its executive capacity, even in the contractual field, is under obligation to act fairly and cannot practise some discrimination.70.3. Even in cases where question is of choice or consideration of competing claims before entering into the field of contract, facts have to be investigated and found before the question of a violation of Article 14 of the Constitution could arise. If those facts are disputed and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, involving examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. In such cases the Court can direct the aggrieved party to resort to alternate remedy of civil suit, etc.70.4. Writ jurisdiction of the High Court under Article 226 of the Constitution was not intended to facilitate avoidance of obligation voluntarily incurred.70.5. Writ petition was not maintainable to avoid contractual obligation. Occurrence of commercial difficulty, inconvenience or hardship in performance of the conditions agreed to in the contract can provide no justification in not complying with the terms of contract which the parties had accepted with open eyes. It cannot ever be that a licensee can work out the licence if he finds it profitable to do so: and he can challenge the conditions under which he agreed to take the licence, if he finds it commercially inexpedient to conduct his business.70.6. Ordinarily, where a breach of contract is complained of, the party complaining of such breach may sue for specific performance of the contract, if contract is capable of being specifically performed. Otherwise, the party may sue for damages.”11. It is contended on behalf of the first respondent that the invocation of Bank Guarantee depends on the cancellation of the contract and once the cancellation of the contract is not justified, the invocation of Bank Guarantee also is not justified. We are afraid that the contention cannot be appreciated. The bank guarantee is a separate contact and is not qualified by the contract on performance of the obligations. No doubt, in terms of the bank guarantee also, the invocation is only against a breach of the conditions in the LoI. But between the appellant and the bank, it has been stipulated that the decision of the appellant as to the breach shall be absolute and binding on the bank.12. An injunction against the invocation of an absolute and an unconditional bank guarantee cannot be granted except in situations of egregious fraud or irretrievable injury to one of the parties concerned. This position also is no more res integra. In Himadri Chemicals Industries Limited v. Coal Tar Refining Company (2007) 8 SCC 110 ), at paragraph -14:“14. From the discussions made hereinabove relating to the principles for grant or refusal to grant of injunction to restrain enforcement of a bank guarantee or a letter of credit, we find that the following principles should be noted in the matter of injunction to restrain the encashment of a bank guarantee or a letter of credit:(i) While dealing with an application for injunction in the course of commercial dealings, and when an unconditional bank guarantee or letter of credit is given or accepted, the beneficiary is entitled to realise such a bank guarantee or a letter of credit in terms thereof irrespective of any pending disputes relating to the terms of the contract.(ii) The bank giving such guarantee is bound to honour it as per its terms irrespective of any dispute raised by its customer.(iii) The courts should be slow in granting an order of injunction to restrain the realisation of a bank guarantee or a letter of credit.(iv) Since a bank guarantee or a letter of credit is an independent and a separate contract and is absolute in nature, the existence of any dispute between the parties to the contract is not a ground for issuing an order of injunction to restrain enforcement of bank guarantees or letters of credit.(v) Fraud of an egregious nature which would vitiate the very foundation of such a bank guarantee or letter of credit and the beneficiary seeks to take advantage of the situation.(vi) Allowing encashment of an unconditional bank guarantee or a letter of credit would result in irretrievable harm or injustice to one of the parties concerned.”13. Guarantee given by the bank to the appellant contains only the condition that in case of breach by the lead promoter, viz., the first respondent of the conditions of LoI, the appellant is free to invoke the bank guarantee and the bank should honour it … “without any demur, merely on a demand from GMB (appellant) stating that the said lead promoter failed to perform the covenants…”. It has also been undertaken by the bank that such written demand from the appellant on the bank shall be … “conclusive, absolute and unequivocal as regards the amount due and payable by the bank under this guarantee”. Between the appellant and the first respondent, in the event of failure to perform the obligations under the LoI dated 06.02.2008, the appellant was entitled to cancel the LoI and invoke the bank guarantee. On being satisfied that the first respondent has failed to perform its obligations as covenanted, the appellant cancelled the LoI and resultantly invoked the bank guarantee. Whether the cancellation is legal and proper, and whether on such cancellation, the bank guarantee could have been invoked on the extreme situation of the first respondent justifying its inability to perform its obligations under the LoI, etc., are not within the purview of an inquiry under Article 226 of the Constitution of India. Between the bank and the appellant, the moment there is a written demand for invoking the bank guarantee pursuant to breach of the covenants between the appellant and the first respondent, as satisfied by the appellant, the bank is bound to honour the payment under the guarantee. | 1[ds]13. Guarantee given by the bank to the appellant contains only the condition that in case of breach by the lead promoter, viz., the first respondent of the conditions of LoI, the appellant is free to invoke the bank guarantee and the bank should honour it …any demur, merely on a demand from GMB (appellant) stating that the said lead promoter failed to perform theIt has also been undertaken by the bank that such written demand from the appellant on the bank shall be …absolute and unequivocal as regards the amount due and payable by the bank under thisBetween the appellant and the first respondent, in the event of failure to perform the obligations under the LoI dated 06.02.2008, the appellant was entitled to cancel the LoI and invoke the bank guarantee. On being satisfied that the first respondent has failed to perform its obligations as covenanted, the appellant cancelled the LoI and resultantly invoked the bank guarantee. Whether the cancellation is legal and proper, and whether on such cancellation, the bank guarantee could have been invoked on the extreme situation of the first respondent justifying its inability to perform its obligations under the LoI, etc., are not within the purview of an inquiry under Article 226 of the Constitution of India. Between the bank and the appellant, the moment there is a written demand for invoking the bank guarantee pursuant to breach of the covenants between the appellant and the first respondent, as satisfied by the appellant, the bank is bound to honour the payment under the guarantee. | 1 | 3,774 | 284 | ### 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:
acts purely in its executive capacity and is bound by the obligations of fairness.70.2. State in its executive capacity, even in the contractual field, is under obligation to act fairly and cannot practise some discrimination.70.3. Even in cases where question is of choice or consideration of competing claims before entering into the field of contract, facts have to be investigated and found before the question of a violation of Article 14 of the Constitution could arise. If those facts are disputed and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, involving examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. In such cases the Court can direct the aggrieved party to resort to alternate remedy of civil suit, etc.70.4. Writ jurisdiction of the High Court under Article 226 of the Constitution was not intended to facilitate avoidance of obligation voluntarily incurred.70.5. Writ petition was not maintainable to avoid contractual obligation. Occurrence of commercial difficulty, inconvenience or hardship in performance of the conditions agreed to in the contract can provide no justification in not complying with the terms of contract which the parties had accepted with open eyes. It cannot ever be that a licensee can work out the licence if he finds it profitable to do so: and he can challenge the conditions under which he agreed to take the licence, if he finds it commercially inexpedient to conduct his business.70.6. Ordinarily, where a breach of contract is complained of, the party complaining of such breach may sue for specific performance of the contract, if contract is capable of being specifically performed. Otherwise, the party may sue for damages.”11. It is contended on behalf of the first respondent that the invocation of Bank Guarantee depends on the cancellation of the contract and once the cancellation of the contract is not justified, the invocation of Bank Guarantee also is not justified. We are afraid that the contention cannot be appreciated. The bank guarantee is a separate contact and is not qualified by the contract on performance of the obligations. No doubt, in terms of the bank guarantee also, the invocation is only against a breach of the conditions in the LoI. But between the appellant and the bank, it has been stipulated that the decision of the appellant as to the breach shall be absolute and binding on the bank.12. An injunction against the invocation of an absolute and an unconditional bank guarantee cannot be granted except in situations of egregious fraud or irretrievable injury to one of the parties concerned. This position also is no more res integra. In Himadri Chemicals Industries Limited v. Coal Tar Refining Company (2007) 8 SCC 110 ), at paragraph -14:“14. From the discussions made hereinabove relating to the principles for grant or refusal to grant of injunction to restrain enforcement of a bank guarantee or a letter of credit, we find that the following principles should be noted in the matter of injunction to restrain the encashment of a bank guarantee or a letter of credit:(i) While dealing with an application for injunction in the course of commercial dealings, and when an unconditional bank guarantee or letter of credit is given or accepted, the beneficiary is entitled to realise such a bank guarantee or a letter of credit in terms thereof irrespective of any pending disputes relating to the terms of the contract.(ii) The bank giving such guarantee is bound to honour it as per its terms irrespective of any dispute raised by its customer.(iii) The courts should be slow in granting an order of injunction to restrain the realisation of a bank guarantee or a letter of credit.(iv) Since a bank guarantee or a letter of credit is an independent and a separate contract and is absolute in nature, the existence of any dispute between the parties to the contract is not a ground for issuing an order of injunction to restrain enforcement of bank guarantees or letters of credit.(v) Fraud of an egregious nature which would vitiate the very foundation of such a bank guarantee or letter of credit and the beneficiary seeks to take advantage of the situation.(vi) Allowing encashment of an unconditional bank guarantee or a letter of credit would result in irretrievable harm or injustice to one of the parties concerned.”13. Guarantee given by the bank to the appellant contains only the condition that in case of breach by the lead promoter, viz., the first respondent of the conditions of LoI, the appellant is free to invoke the bank guarantee and the bank should honour it … “without any demur, merely on a demand from GMB (appellant) stating that the said lead promoter failed to perform the covenants…”. It has also been undertaken by the bank that such written demand from the appellant on the bank shall be … “conclusive, absolute and unequivocal as regards the amount due and payable by the bank under this guarantee”. Between the appellant and the first respondent, in the event of failure to perform the obligations under the LoI dated 06.02.2008, the appellant was entitled to cancel the LoI and invoke the bank guarantee. On being satisfied that the first respondent has failed to perform its obligations as covenanted, the appellant cancelled the LoI and resultantly invoked the bank guarantee. Whether the cancellation is legal and proper, and whether on such cancellation, the bank guarantee could have been invoked on the extreme situation of the first respondent justifying its inability to perform its obligations under the LoI, etc., are not within the purview of an inquiry under Article 226 of the Constitution of India. Between the bank and the appellant, the moment there is a written demand for invoking the bank guarantee pursuant to breach of the covenants between the appellant and the first respondent, as satisfied by the appellant, the bank is bound to honour the payment under the guarantee.
### Response:
1
### Explanation:
13. Guarantee given by the bank to the appellant contains only the condition that in case of breach by the lead promoter, viz., the first respondent of the conditions of LoI, the appellant is free to invoke the bank guarantee and the bank should honour it …any demur, merely on a demand from GMB (appellant) stating that the said lead promoter failed to perform theIt has also been undertaken by the bank that such written demand from the appellant on the bank shall be …absolute and unequivocal as regards the amount due and payable by the bank under thisBetween the appellant and the first respondent, in the event of failure to perform the obligations under the LoI dated 06.02.2008, the appellant was entitled to cancel the LoI and invoke the bank guarantee. On being satisfied that the first respondent has failed to perform its obligations as covenanted, the appellant cancelled the LoI and resultantly invoked the bank guarantee. Whether the cancellation is legal and proper, and whether on such cancellation, the bank guarantee could have been invoked on the extreme situation of the first respondent justifying its inability to perform its obligations under the LoI, etc., are not within the purview of an inquiry under Article 226 of the Constitution of India. Between the bank and the appellant, the moment there is a written demand for invoking the bank guarantee pursuant to breach of the covenants between the appellant and the first respondent, as satisfied by the appellant, the bank is bound to honour the payment under the guarantee.
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Modi Sugar Mills Ltd Vs. Commissioner Of Sales Tax, U.P., Lucknow | shall be required to furnish such returns.Rule 41. Returns of assessment year. (1) Every dealer whose estimated turnover during the assessment year is not less than Rs. 15,000 and who elects to submit returns of such year shall before the last day of July, October, January and April submit to the Sales Tax Officer, a return of his gross turnover for the quarters ending June 30, September 30, December 31 and March 31, respectively, in form IV:Provided that every dealer or firm, to whom the provisions of sub-section (3) of S. 18 are applicable shall submit such returns within seven days of the expiry of each month during the year in which the business is commenced."3. Before we deal with the interpretation of the section and the rules it is necessary to give a few relevant facts. It appears that for the assessment years 1948-49, 1949-50 and 1950-51, the assessee was assessed on the basis of returns filed for the turnover of the previous year relevant to each of these assessment years. For the assessment year 1951-52, however, the assessee purporting to make an election under R. 39 of the rules filed returns of his turnover of the assessment year instead of the returns of the turnover of the previous year. The Judge (Revision) held that without sanction of the Sales Tax Commissioner the assessee was not entitled to do so.4. Mr. Sastri, the learned counsel for the assessee submits that the above rule should be interpreted as follows: under sub-rule (1) of R. 39 the election is to file returns of the turnover of the assessment year instead of returns of the turnover of the previous year and not vice versa. Sub-rule (2) also deals with the same election, i.e., the election to file returns of the turnover of the assessment year instead of the turnover of the previous year. Rule 40 does not displace the above reading of R. 39 because it covers the case of every dealer who wishes to submit a return of the turnover of the previous year. There is no other rule which deals with such a dealer, and he says that the word elects may perhaps have reference to the election mentioned in form IV which we will presently consider. At any rate, he says that sub-rule (2) of R. 39 has nothing to do with the election mentioned in R. 40. He then submits that R. 41 is concerned with the dealer who has elected under R. 39 (1) to submit returns of the turnover of the assessment year and this rule provides various matters in this connection.5. The learned counsel for the State, Mr. C. B. Agarwala, on the other hand, contends that S. 7 of the Act, read with the rules, gives a dealer an option to file returns in respect of the turnover of the previous year or returns of the turnover of the assessment year, and he says that this option is and can only be exercised in the first year when a dealer becomes taxable under the Act, and it is this option or election that is covered by sub-rule (2) of R. 39. He relies strongly on form IV in which the following lines occur:"I have elected to submit return of my turnover of the previous year ending month or months of the assessment year". In the alternative he contends that even if R. 39 (2) does not cover the filing of the returns of the previous year, according to general principles the assessee having exercised an option to be assessed in respect of the turnover of the previous year cannot now change the basis of assessment."6. In our opinion the Judge (Revision) was in error in holding that the assessee was not entitled to make an election under R. 39 (1) without the sanction of the Sales Tax Commissioner, and the answer to the question referred to the High Court should be in favour of the assessee. Rule 39 (2) specifically mentions an election under sub-r. (1) and there is only one kind of election under R. 39 (1) and that is for a dealer to elect to submit returns of his turnover for the assessment year in lieu of the returns of the turnover of the previous year. In other words, under R. 39 (1) the dealer makes a choice that he will be assessed in respect of the turnover not of the previous year, which is normally the rule under S. 7, but in respect of the return of the turnover of the assessment year. It seems to us that R. 39 (2) covers only the case where election has been made by a dealer to be assessed in respect of the turnover of the assessment year. It is true that R. 40 also uses the word elects but this may have reference to the lines in form IV which we have already reproduced above. But assuming that when a dealer submits a return in respect of the previous year under R. 40 and he is treated to have elected within R. 40, yet there is no provision like R. 39 (2) which debars him form exercising the option under R. 39 (1).In our opinion an express provision like R. 39 (2) was necessary to prevent a dealer from exercising the option given to him under R. 39 (1). We do not express any opinion whether such a rule could validly be made under S. 7 (1).We are not impressed by the argument of Mr. Agarwala that general principles debar the assessee from exercising the option under R. 39 (1). It is a statutory right given to the assessee and the general principles, if applicable, cannot displace the statutory right.7. We may mention that the reasoning in the judgment under appeal has been doubted in an unreported judgment of the Allahabad High Court in Mahesh Company Kahoo Kothi Kanpur v. Commissioner Sales Tax, Uttar Pradesh, STR No. 1623 of 1956, D/- 13-3-1963 (All).8 | 1[ds]6. In our opinion the Judge (Revision) was in error in holding that the assessee was not entitled to make an election under R. 39 (1) without the sanction of the Sales Tax Commissioner, and the answer to the question referred to the High Court should be in favour of the assessee. Rule 39 (2) specifically mentions an election under sub-r. (1) and there is only one kind of election under R. 39 (1) and that is for a dealer to elect to submit returns of his turnover for the assessment year in lieu of the returns of the turnover of the previous year. In other words, under R. 39 (1) the dealer makes a choice that he will be assessed in respect of the turnover not of the previous year, which is normally the rule under S. 7, but in respect of the return of the turnover of the assessment year. It seems to us that R. 39 (2) covers only the case where election has been made by a dealer to be assessed in respect of the turnover of the assessment year. It is true that R. 40 also uses the word elects but this may have reference to the lines in form IV which we have already reproduced above. But assuming that when a dealer submits a return in respect of the previous year under R. 40 and he is treated to have elected within R. 40, yet there is no provision like R. 39 (2) which debars him form exercising the option under R. 39 (1).In our opinion an express provision like R. 39 (2) was necessary to prevent a dealer from exercising the option given to him under R. 39 (1). We do not express any opinion whether such a rule could validly be made under S. 7 (1).We are not impressed by the argument of Mr. Agarwala that general principles debar the assessee from exercising the option under R. 39 (1). It is a statutory right given to the assessee and the general principles, if applicable, cannot displace the statutory right.7. We may mention that the reasoning in the judgment under appeal has been doubted in an unreported judgment of the Allahabad High Court in Mahesh Company Kahoo Kothi Kanpur v. Commissioner Sales Tax, Uttar Pradesh, STR No. 1623 of 1956, D/- 13-3-1963 (All). | 1 | 1,695 | 446 | ### 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:
shall be required to furnish such returns.Rule 41. Returns of assessment year. (1) Every dealer whose estimated turnover during the assessment year is not less than Rs. 15,000 and who elects to submit returns of such year shall before the last day of July, October, January and April submit to the Sales Tax Officer, a return of his gross turnover for the quarters ending June 30, September 30, December 31 and March 31, respectively, in form IV:Provided that every dealer or firm, to whom the provisions of sub-section (3) of S. 18 are applicable shall submit such returns within seven days of the expiry of each month during the year in which the business is commenced."3. Before we deal with the interpretation of the section and the rules it is necessary to give a few relevant facts. It appears that for the assessment years 1948-49, 1949-50 and 1950-51, the assessee was assessed on the basis of returns filed for the turnover of the previous year relevant to each of these assessment years. For the assessment year 1951-52, however, the assessee purporting to make an election under R. 39 of the rules filed returns of his turnover of the assessment year instead of the returns of the turnover of the previous year. The Judge (Revision) held that without sanction of the Sales Tax Commissioner the assessee was not entitled to do so.4. Mr. Sastri, the learned counsel for the assessee submits that the above rule should be interpreted as follows: under sub-rule (1) of R. 39 the election is to file returns of the turnover of the assessment year instead of returns of the turnover of the previous year and not vice versa. Sub-rule (2) also deals with the same election, i.e., the election to file returns of the turnover of the assessment year instead of the turnover of the previous year. Rule 40 does not displace the above reading of R. 39 because it covers the case of every dealer who wishes to submit a return of the turnover of the previous year. There is no other rule which deals with such a dealer, and he says that the word elects may perhaps have reference to the election mentioned in form IV which we will presently consider. At any rate, he says that sub-rule (2) of R. 39 has nothing to do with the election mentioned in R. 40. He then submits that R. 41 is concerned with the dealer who has elected under R. 39 (1) to submit returns of the turnover of the assessment year and this rule provides various matters in this connection.5. The learned counsel for the State, Mr. C. B. Agarwala, on the other hand, contends that S. 7 of the Act, read with the rules, gives a dealer an option to file returns in respect of the turnover of the previous year or returns of the turnover of the assessment year, and he says that this option is and can only be exercised in the first year when a dealer becomes taxable under the Act, and it is this option or election that is covered by sub-rule (2) of R. 39. He relies strongly on form IV in which the following lines occur:"I have elected to submit return of my turnover of the previous year ending month or months of the assessment year". In the alternative he contends that even if R. 39 (2) does not cover the filing of the returns of the previous year, according to general principles the assessee having exercised an option to be assessed in respect of the turnover of the previous year cannot now change the basis of assessment."6. In our opinion the Judge (Revision) was in error in holding that the assessee was not entitled to make an election under R. 39 (1) without the sanction of the Sales Tax Commissioner, and the answer to the question referred to the High Court should be in favour of the assessee. Rule 39 (2) specifically mentions an election under sub-r. (1) and there is only one kind of election under R. 39 (1) and that is for a dealer to elect to submit returns of his turnover for the assessment year in lieu of the returns of the turnover of the previous year. In other words, under R. 39 (1) the dealer makes a choice that he will be assessed in respect of the turnover not of the previous year, which is normally the rule under S. 7, but in respect of the return of the turnover of the assessment year. It seems to us that R. 39 (2) covers only the case where election has been made by a dealer to be assessed in respect of the turnover of the assessment year. It is true that R. 40 also uses the word elects but this may have reference to the lines in form IV which we have already reproduced above. But assuming that when a dealer submits a return in respect of the previous year under R. 40 and he is treated to have elected within R. 40, yet there is no provision like R. 39 (2) which debars him form exercising the option under R. 39 (1).In our opinion an express provision like R. 39 (2) was necessary to prevent a dealer from exercising the option given to him under R. 39 (1). We do not express any opinion whether such a rule could validly be made under S. 7 (1).We are not impressed by the argument of Mr. Agarwala that general principles debar the assessee from exercising the option under R. 39 (1). It is a statutory right given to the assessee and the general principles, if applicable, cannot displace the statutory right.7. We may mention that the reasoning in the judgment under appeal has been doubted in an unreported judgment of the Allahabad High Court in Mahesh Company Kahoo Kothi Kanpur v. Commissioner Sales Tax, Uttar Pradesh, STR No. 1623 of 1956, D/- 13-3-1963 (All).8
### Response:
1
### Explanation:
6. In our opinion the Judge (Revision) was in error in holding that the assessee was not entitled to make an election under R. 39 (1) without the sanction of the Sales Tax Commissioner, and the answer to the question referred to the High Court should be in favour of the assessee. Rule 39 (2) specifically mentions an election under sub-r. (1) and there is only one kind of election under R. 39 (1) and that is for a dealer to elect to submit returns of his turnover for the assessment year in lieu of the returns of the turnover of the previous year. In other words, under R. 39 (1) the dealer makes a choice that he will be assessed in respect of the turnover not of the previous year, which is normally the rule under S. 7, but in respect of the return of the turnover of the assessment year. It seems to us that R. 39 (2) covers only the case where election has been made by a dealer to be assessed in respect of the turnover of the assessment year. It is true that R. 40 also uses the word elects but this may have reference to the lines in form IV which we have already reproduced above. But assuming that when a dealer submits a return in respect of the previous year under R. 40 and he is treated to have elected within R. 40, yet there is no provision like R. 39 (2) which debars him form exercising the option under R. 39 (1).In our opinion an express provision like R. 39 (2) was necessary to prevent a dealer from exercising the option given to him under R. 39 (1). We do not express any opinion whether such a rule could validly be made under S. 7 (1).We are not impressed by the argument of Mr. Agarwala that general principles debar the assessee from exercising the option under R. 39 (1). It is a statutory right given to the assessee and the general principles, if applicable, cannot displace the statutory right.7. We may mention that the reasoning in the judgment under appeal has been doubted in an unreported judgment of the Allahabad High Court in Mahesh Company Kahoo Kothi Kanpur v. Commissioner Sales Tax, Uttar Pradesh, STR No. 1623 of 1956, D/- 13-3-1963 (All).
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Bhaskar Waman Joshi Vs. Shrinarayan Rambilas Agarwal | evidence in Suit No. 112 of 1932 deposed that the tax came to Rs. 48 on the date of purchase, but he did not state that this amount was payable monthly. There is again evidence of witness Balkrishna examined by the transferees that the water tax was paid by the tenants. In their written statement, the transferees had set out a statement of income and expenditure for the years 1931-1940 and in that statement for the year 1933 the expenses debited against income were Rs. 426-11-0, for 1934 Rs. 346-15-6 and for 1935 Rs. 542-2-6-, for 1936 Rs. 1,666-7-9, for 1937 Rs. 1,160-1-3, for 1938 Rs. 529-2-3, for 1939 Rs. 570-11-3 and for 1940 Rs. 46/2/0. If Rs. 48 were payable as municipal tax every month, the liability on account of taxes alone for exceeded the expenses debited against the rent received. This statement of account abundantly shows that the municipal taxes were borne by the tenants and not by the landlords. The High Court in para, 34 of its judgment proceeded to estimate the rental of the properties at Rs. 245 per month sand capitalised the same at 5 per cent. The High Court is not shown to be in error in accepting the net monthly rental at Rs. 245 per month. 11. The area of the land of the Amba Gate house in 9037 square feet, the area of the land at chawl is 23805 square feet, and the area of land of Dhanraj Lane house is 817 square feet. There is no clear evidence on the record about the precise area of the lands covered by the structures, but it is conceded that the structures stood on an area less than one-half of the total area of the land. From the evidence especially of the valuation reports, it appears that of the Amba Gate house 5800 square feet of land were open and of the Chawl 12000 square feet of land were open. Valuation of building land with structures by capitalising the rental may yield a reliable basis for ascertaining the value of the land together with the structures only if the land is developed to its full capacity by erection of structures. If the land is not fully developed by raising structures, valuation of houses together with lands by capitalising the rent received may not furnish reliable date for assessing the market value. By aggregating the value of the land and the value of the structure separately estimated a scientifically accurate value of the land with the structure may not be obtained. But where the land is relatively valuable and the structures are old and comparatively of small value this method may afford a rough basis in the absence of other reliable date for ascertaining the value of the land and the structure. Exs. D-52 and D-53 are the reports prepared by a valuer, of the market value of the Chawal and the Amba Gate house. According to the report Ex. D-52, the value of the superstructure of the Chawl was Rs. 31,708. Out of this amount the valuer sought to deduct 20 per cent as per Superintending Engineers letter dated the 21st August, 1931. On what basis that deduction has been made has not been explained. He again proceeded to deduct 20 per cent as depreciation on the cost of the building and estimated at Rs. 20,293 the value of the superstructure. It is evident that a deliberate attempt was made by the valuer to depreciate the value of the superstructure by making at least one deduction of 20 per cent for which there is no warrant. Even assuming that this valuation of Rs. 20,293 is accurate, the value of the Chawl together with the land considerably exceeds Rs. 26,000. The valuer has valued the site at 4 as, per square foot, but no reliable evidence has been led to support that estimate, Similarly for the Amba Gate house the valuer estimated the value at Rs. 18,.556 for the superstructure and he deducted 20 per cent with effect from the 22nd August, 1931 according to the Superintending Engineers letter dated the 21st August, 1931 and 25 per cent as depreciation charges on building and arrived at the figure of Rs. 11,134 and added there to the value of the land at the rate of 4 as. per square foot. The evidence on the record does not warrant the assumption that the land was wroth only annas four per square foot. As pointed out by the High Court in view of the sale deeds Exs. P-9 and P-21 the price of the land fluctuated between Re. 1 and Rs. 2-4 as per square foot. Even if the lower of the two rates be adopted, the value of the Chawl and the Amba Gate house will considerably exceed the price embodied in the sale deed. 12. The house in Dhanraj Lane was valued in the draft sale at Rs. 3,500 and in the sale deed at Rs. 2,000. No explanation has been given for this disparity between the prices mentioned in the draft and the sale deed and there is substance in the contention strongly pressed by counsel for the transferors that the value of Rs. 2,000 for a house with a ground floor and two stories is artificial. The evidence discloses that the house was let out on a monthly rent of Rs. 20 and capitalising that rent at 5 per cent on the assumption that by the construction the land was fully developed, the price thereof was more than double the price set out in the deed. It is clear that this house was included in the deed to make up the total value of Rs. 39,500, the amount required by the transferors to tide over their immediate difficulties. 13. Counsel for the transferees sought to rely upon the evidence of subsequent conduct of the transferors as indicative of the character of the transaction as a sale, but as already observed, that evidence is inadmissible. | 0[ds]The question whether by the incorporation of such a condition a transaction ostensibly of sale may be regarded as a mortgage is one of intention of the parties to be gathered from the language of the deed interpreted in the light of the surrounding circumstances. The circumstance that the condition is incorporated in the sale deed must undoubtedly be taken into account, but the value to be attached thereto must vary with the degree of formality attending upon the transactionIf the words are plain and unambiguous they must in the light of the evidence of surrounding circumstances be given their true legal effect. If there is ambiguity in the language employed, the intention may be ascertained from the contents of the deed with such extrinsic evidence as may be law be permitted to be adduced to show in what manner the language of the deed was related to existing facts. Oral evidence of intention is not admissible in interpreting the covenants of the deed but evidence to explain or even to contradict the recitals as distinguished from the terms of the documents may of course be given .Evidence of the contemporaneous conduct is always admissible as a surrounding circumstance, but evidence as to subsequent conduct of the parties is inadmissible8. In the light of these principles the real character of the document Ex. D-1 may be ascertained. This agreement strongly indicates that the parties regarded the arrangement incorporated in the deed dated September 10, 1931, as a mortgageThere is in the deed no reference to any additional amount to be spent by the transferees for erecting buildings upon the land conveyed; and the books of the transferees are referred to in the agreement only to make the accounts maintained by them binding upon the transferorsThere is, however, no clear evidence as to what municipal taxes were payable in respect of the houses, and whether the taxes were payable by the tenants or by the landlordThis statement of account abundantly shows that the municipal taxes were borne by the tenants and not by the landlords. The High Court in para, 34 of its judgment proceeded to estimate the rental of the properties at Rs. 245 per month sand capitalised the same at 5 per cent. The High Court is not shown to be in error in accepting the net monthly rental at Rs. 245 per month. There is no clear evidence on the record about the precise area of the lands covered by the structures, but it is conceded that the structures stood on an area less than one-half of the total area of the land. From the evidence especially of the valuation reports, it appears that of the Amba Gate house 5800 square feet of land were open and of the Chawl 12000 square feet of land were open. Valuation of building land with structures by capitalising the rental may yield a reliable basis for ascertaining the value of the land together with the structures only if the land is developed to its full capacity by erection of structures. If the land is not fully developed by raising structures, valuation of houses together with lands by capitalising the rent received may not furnish reliable date for assessing the market value. By aggregating the value of the land and the value of the structure separately estimated a scientifically accurate value of the land with the structure may not be obtained. But where the land is relatively valuable and the structures are old and comparatively of small value this method may afford a rough basis in the absence of other reliable date for ascertaining the value of the land and the structure. Exs. D-52 and D-53 are the reports prepared by a valuer, of the market value of the Chawal and the Amba Gate house. According to the report Ex. D-52, the value of the superstructure of the Chawl was Rs. 31,708. Out of this amount the valuer sought to deduct 20 per cent as per Superintending Engineers letter dated the 21st August, 1931. On what basis that deduction has been made has not been explained. He again proceeded to deduct 20 per cent as depreciation on the cost of the building and estimated at Rs. 20,293 the value of the superstructure. It is evident that a deliberate attempt was made by the valuer to depreciate the value of the superstructure by making at least one deduction of 20 per cent for which there is no warrant. Even assuming that this valuation of Rs. 20,293 is accurate, the value of the Chawl together with the land considerably exceeds Rs. 26,000. The valuer has valued the site at 4 as, per square foot, but no reliable evidence has been led to support that estimate, Similarly for the Amba Gate house the valuer estimated the value at Rs. 18,.556 for the superstructure and he deducted 20 per cent with effect from the 22nd August, 1931 according to the Superintending Engineers letter dated the 21st August, 1931 and 25 per cent as depreciation charges on building and arrived at the figure of Rs. 11,134 and added there to the value of the land at the rate of 4 as. per square foot. The evidence on the record does not warrant the assumption that the land was wroth only annas four per square foot. As pointed out by the High Court in view of the sale deeds Exs. P-9 and P-21 the price of the land fluctuated between Re. 1 and Rs. 2-4 as per square foot. Even if the lower of the two rates be adopted, the value of the Chawl and the Amba Gate house will considerably exceed the price embodied in the sale deed12. The house in Dhanraj Lane was valued in the draft sale at Rs. 3,500 and in the sale deed at Rs. 2,000. No explanation has been given for this disparity between the prices mentioned in the draft and the sale deed and there is substance in the contention strongly pressed by counsel for the transferors that the value of Rs. 2,000 for a house with a ground floor and two stories is artificial. The evidence discloses that the house was let out on a monthly rent of Rs. 20 and capitalising that rent at 5 per cent on the assumption that by the construction the land was fully developed, the price thereof was more than double the price set out in the deed. It is clear that this house was included in the deed to make up the total value of Rs. 39,500, the amount required by the transferors to tide over their immediate difficulties13. Counsel for the transferees sought to rely upon the evidence of subsequent conduct of the transferors as indicative of the character of the transaction as a, but as already observed, that evidence is inadmissible. | 0 | 4,650 | 1,223 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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evidence in Suit No. 112 of 1932 deposed that the tax came to Rs. 48 on the date of purchase, but he did not state that this amount was payable monthly. There is again evidence of witness Balkrishna examined by the transferees that the water tax was paid by the tenants. In their written statement, the transferees had set out a statement of income and expenditure for the years 1931-1940 and in that statement for the year 1933 the expenses debited against income were Rs. 426-11-0, for 1934 Rs. 346-15-6 and for 1935 Rs. 542-2-6-, for 1936 Rs. 1,666-7-9, for 1937 Rs. 1,160-1-3, for 1938 Rs. 529-2-3, for 1939 Rs. 570-11-3 and for 1940 Rs. 46/2/0. If Rs. 48 were payable as municipal tax every month, the liability on account of taxes alone for exceeded the expenses debited against the rent received. This statement of account abundantly shows that the municipal taxes were borne by the tenants and not by the landlords. The High Court in para, 34 of its judgment proceeded to estimate the rental of the properties at Rs. 245 per month sand capitalised the same at 5 per cent. The High Court is not shown to be in error in accepting the net monthly rental at Rs. 245 per month. 11. The area of the land of the Amba Gate house in 9037 square feet, the area of the land at chawl is 23805 square feet, and the area of land of Dhanraj Lane house is 817 square feet. There is no clear evidence on the record about the precise area of the lands covered by the structures, but it is conceded that the structures stood on an area less than one-half of the total area of the land. From the evidence especially of the valuation reports, it appears that of the Amba Gate house 5800 square feet of land were open and of the Chawl 12000 square feet of land were open. Valuation of building land with structures by capitalising the rental may yield a reliable basis for ascertaining the value of the land together with the structures only if the land is developed to its full capacity by erection of structures. If the land is not fully developed by raising structures, valuation of houses together with lands by capitalising the rent received may not furnish reliable date for assessing the market value. By aggregating the value of the land and the value of the structure separately estimated a scientifically accurate value of the land with the structure may not be obtained. But where the land is relatively valuable and the structures are old and comparatively of small value this method may afford a rough basis in the absence of other reliable date for ascertaining the value of the land and the structure. Exs. D-52 and D-53 are the reports prepared by a valuer, of the market value of the Chawal and the Amba Gate house. According to the report Ex. D-52, the value of the superstructure of the Chawl was Rs. 31,708. Out of this amount the valuer sought to deduct 20 per cent as per Superintending Engineers letter dated the 21st August, 1931. On what basis that deduction has been made has not been explained. He again proceeded to deduct 20 per cent as depreciation on the cost of the building and estimated at Rs. 20,293 the value of the superstructure. It is evident that a deliberate attempt was made by the valuer to depreciate the value of the superstructure by making at least one deduction of 20 per cent for which there is no warrant. Even assuming that this valuation of Rs. 20,293 is accurate, the value of the Chawl together with the land considerably exceeds Rs. 26,000. The valuer has valued the site at 4 as, per square foot, but no reliable evidence has been led to support that estimate, Similarly for the Amba Gate house the valuer estimated the value at Rs. 18,.556 for the superstructure and he deducted 20 per cent with effect from the 22nd August, 1931 according to the Superintending Engineers letter dated the 21st August, 1931 and 25 per cent as depreciation charges on building and arrived at the figure of Rs. 11,134 and added there to the value of the land at the rate of 4 as. per square foot. The evidence on the record does not warrant the assumption that the land was wroth only annas four per square foot. As pointed out by the High Court in view of the sale deeds Exs. P-9 and P-21 the price of the land fluctuated between Re. 1 and Rs. 2-4 as per square foot. Even if the lower of the two rates be adopted, the value of the Chawl and the Amba Gate house will considerably exceed the price embodied in the sale deed. 12. The house in Dhanraj Lane was valued in the draft sale at Rs. 3,500 and in the sale deed at Rs. 2,000. No explanation has been given for this disparity between the prices mentioned in the draft and the sale deed and there is substance in the contention strongly pressed by counsel for the transferors that the value of Rs. 2,000 for a house with a ground floor and two stories is artificial. The evidence discloses that the house was let out on a monthly rent of Rs. 20 and capitalising that rent at 5 per cent on the assumption that by the construction the land was fully developed, the price thereof was more than double the price set out in the deed. It is clear that this house was included in the deed to make up the total value of Rs. 39,500, the amount required by the transferors to tide over their immediate difficulties. 13. Counsel for the transferees sought to rely upon the evidence of subsequent conduct of the transferors as indicative of the character of the transaction as a sale, but as already observed, that evidence is inadmissible.
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the language of the deed was related to existing facts. Oral evidence of intention is not admissible in interpreting the covenants of the deed but evidence to explain or even to contradict the recitals as distinguished from the terms of the documents may of course be given .Evidence of the contemporaneous conduct is always admissible as a surrounding circumstance, but evidence as to subsequent conduct of the parties is inadmissible8. In the light of these principles the real character of the document Ex. D-1 may be ascertained. This agreement strongly indicates that the parties regarded the arrangement incorporated in the deed dated September 10, 1931, as a mortgageThere is in the deed no reference to any additional amount to be spent by the transferees for erecting buildings upon the land conveyed; and the books of the transferees are referred to in the agreement only to make the accounts maintained by them binding upon the transferorsThere is, however, no clear evidence as to what municipal taxes were payable in respect of the houses, and whether the taxes were payable by the tenants or by the landlordThis statement of account abundantly shows that the municipal taxes were borne by the tenants and not by the landlords. The High Court in para, 34 of its judgment proceeded to estimate the rental of the properties at Rs. 245 per month sand capitalised the same at 5 per cent. The High Court is not shown to be in error in accepting the net monthly rental at Rs. 245 per month. There is no clear evidence on the record about the precise area of the lands covered by the structures, but it is conceded that the structures stood on an area less than one-half of the total area of the land. From the evidence especially of the valuation reports, it appears that of the Amba Gate house 5800 square feet of land were open and of the Chawl 12000 square feet of land were open. Valuation of building land with structures by capitalising the rental may yield a reliable basis for ascertaining the value of the land together with the structures only if the land is developed to its full capacity by erection of structures. If the land is not fully developed by raising structures, valuation of houses together with lands by capitalising the rent received may not furnish reliable date for assessing the market value. By aggregating the value of the land and the value of the structure separately estimated a scientifically accurate value of the land with the structure may not be obtained. But where the land is relatively valuable and the structures are old and comparatively of small value this method may afford a rough basis in the absence of other reliable date for ascertaining the value of the land and the structure. Exs. D-52 and D-53 are the reports prepared by a valuer, of the market value of the Chawal and the Amba Gate house. According to the report Ex. D-52, the value of the superstructure of the Chawl was Rs. 31,708. Out of this amount the valuer sought to deduct 20 per cent as per Superintending Engineers letter dated the 21st August, 1931. On what basis that deduction has been made has not been explained. He again proceeded to deduct 20 per cent as depreciation on the cost of the building and estimated at Rs. 20,293 the value of the superstructure. It is evident that a deliberate attempt was made by the valuer to depreciate the value of the superstructure by making at least one deduction of 20 per cent for which there is no warrant. Even assuming that this valuation of Rs. 20,293 is accurate, the value of the Chawl together with the land considerably exceeds Rs. 26,000. The valuer has valued the site at 4 as, per square foot, but no reliable evidence has been led to support that estimate, Similarly for the Amba Gate house the valuer estimated the value at Rs. 18,.556 for the superstructure and he deducted 20 per cent with effect from the 22nd August, 1931 according to the Superintending Engineers letter dated the 21st August, 1931 and 25 per cent as depreciation charges on building and arrived at the figure of Rs. 11,134 and added there to the value of the land at the rate of 4 as. per square foot. The evidence on the record does not warrant the assumption that the land was wroth only annas four per square foot. As pointed out by the High Court in view of the sale deeds Exs. P-9 and P-21 the price of the land fluctuated between Re. 1 and Rs. 2-4 as per square foot. Even if the lower of the two rates be adopted, the value of the Chawl and the Amba Gate house will considerably exceed the price embodied in the sale deed12. The house in Dhanraj Lane was valued in the draft sale at Rs. 3,500 and in the sale deed at Rs. 2,000. No explanation has been given for this disparity between the prices mentioned in the draft and the sale deed and there is substance in the contention strongly pressed by counsel for the transferors that the value of Rs. 2,000 for a house with a ground floor and two stories is artificial. The evidence discloses that the house was let out on a monthly rent of Rs. 20 and capitalising that rent at 5 per cent on the assumption that by the construction the land was fully developed, the price thereof was more than double the price set out in the deed. It is clear that this house was included in the deed to make up the total value of Rs. 39,500, the amount required by the transferors to tide over their immediate difficulties13. Counsel for the transferees sought to rely upon the evidence of subsequent conduct of the transferors as indicative of the character of the transaction as a, but as already observed, that evidence is inadmissible.
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Motipur Zamindari Company Private, Limited, and Another Vs. Their Workmen and Others | provided for the workmen ? What should be the rate of payment to the loading mazdoors for loading cane and such other purposes? (4) Whether a scheme of provident fund and retirement gratuity should be introduced? If so, what should be the scheme? (5) Whether Anchit Roy and Raghunandan Singh, two watchmen, be reinstated or/and otherwise compensated? (6) Whether normal workload be fixed for each individual and group of workmen for different kinds of work? If so, what should be the workload?" 2. The learned Additional Solicitor-General has fairly not pressed his appeals in respect of issues (1), (3), (4) and (5). He wanted to argue the question about the fixation of age which was covered by point (3) and he stated to us that the workmen also challenged age fixation of wage from that point of view. We then intimated to the learned counsel appearing for both the parties that that was a matter of fact and we did not propose to interfere with the conclusion of the tribunal on that point. So issue (3) also does not remain to be considered in the employers appeals.That leaves the appeal by the workmen. In this appeal Sri Roy has urged that the tribunal was in error in respect of one condition introduced by it in the scheme of gratuity framed by it. This is condition (4). This condition provides that no gratuity shall be payable to a workman dismissed for misconduct involving moral turpitude. Sri Roy contends that the introduction of this condition is inconsistent with the principles laid down by this Court in Garment Cleaning Works v. Its workmen [1961 - I L.L.J. 513]. In that case this Court has held that gratuity is not paid to an employee gratuitously or merely as a matter of boon, but is paid to him for the service rendered by him to the employer. Consequently he should not be wholly deprived of the benefit thus earned by long and meritorious service even thought at the end of such service he might have been found guilty of misconduct which entailed his dismissal. In our opinion, the contention raised by Sri Roy in respect of this condition raised well-founded. We would, therefore, direct that instead of the said clause another clause should be substituted in the scheme of gratuity. The provision should be that while paying the gratuity to a workman who is dismissed for misconduct only such amount should be deducted from the gratuity due to him in respect of which loss may have been caused by the misconduct of the employee. 3. The other contention which Sri Roy has raised on behalf of the workmen is in regard to the order passed by the tribunal holding that the dismissal of the employee Anchit Roy was justified. It appears that this employee was transferred and he refused to obey the order of transfer. The tribunal has found that the order of transfer did not amount to a punishment nor was it passed to victimize the employee. It appears that it was urged before the tribunal that the transfer in substance directed the employee to go to a lower post. This contention also has been rejected by the tribunal. Sri Roy contends that the finding made by the tribunal on this issue is not supported by any evidence on the record and he urged that in respect of this dismissal no evidence has been led by the employer. The only document which they produced before the tribunal was an envelope which was sent to the employee by registered post and it was suggested by the employer that the employee refused to take delivery of the said letter. Sri Roy contends that in view of the fact that the workman has denied that he refused to take the registered letter the employer should have proved that fact by independent evidence. We are not impressed by this argument. But apart from the question as to whether the employee refused to take delivery of the envelope, it is plain that the employee who gave evidence has admitted that on 8 April, 1957 he was transferred work as Jirat chaukidar at Motipur centre and he did not go. 4. Therefore, the contention that there is no evidence to support the finding of the tribunal that the employee refused to obey the order of transfer is plainly misconceived. Whether or not the evidence given by the employee justified the said conclusion would be a matter of appreciating evidence and this Court in dealing with industrial appeal under Art. 136 ordinarily does not enter into question of fact. In our opinion, therefore, there is no substance in the argument urged by Sri Roy, that the finding made by the tribunal in respect of the dismissal of this employee is invalid in law.There is one more point which Sri Roy has urged before us and that is in regard to the date from which the award has been ordered by the tribunal to come into force. It does appear that though the reference in the present case was made as early as in 1957 the award was ultimately pronounced in 1963. Sri Roy contends that in view of the fact that the proceedings before the tribunal took such a long time it would be unfair not to direct the payment of the wages as devised by the tribunal from the date of the reference. It is true that these proceedings had taken an unduly long time, but we do not see any justification for interfering with the order passed by the tribunal. Normally it is for the tribunal to consider from what date the award should take effect and having regard to the fact that the workmen in question are employed in agricultural labour the tribunal thought that the operation of the award should begin from the date when the award was pronounced. In this view of the matter, we are reluctant to interfere with the direction of the tribunal. 5. | 0[ds]In our opinion, the contention raised by Sri Roy in respect of this condition raised. We would, therefore, direct that instead of the said clause another clause should be substituted in the scheme of gratuity. The provision should be that while paying the gratuity to a workman who is dismissed for misconduct only such amount should be deducted from the gratuity due to him in respect of which loss may have been caused by the misconduct of the employeeWe are not impressed by this argument. But apart from the question as to whether the employee refused to take delivery of the envelope, it is plain that the employee who gave evidence has admitted that on 8 April, 1957 he was transferred work as Jirat chaukidar at Motipur centre and he did not go.Therefore, the contention that there is no evidence to support the finding of the tribunal that the employee refused to obey the order of transfer is plainly misconceived. Whether or not the evidence given by the employee justified the said conclusion would be a matter of appreciating evidence and this Court in dealing with industrial appeal under Art. 136 ordinarily does not enter into question of fact. In our opinion, therefore, there is no substance in the argument urged by Sri Roy, that the finding made by the tribunal in respect of the dismissal of this employee is invalid in law.There is one more point which Sri Roy has urged before us and that is in regard to the date from which the award has been ordered by the tribunal to come into force. It does appear that though the reference in the present case was made as early as in 1957 the award was ultimately pronounced in 1963. Sri Roy contends that in view of the fact that the proceedings before the tribunal took such a long time it would be unfair not to direct the payment of the wages as devised by the tribunal from the date of the reference. It is true that these proceedings had taken an unduly long time, but we do not see any justification for interfering with the order passed by the tribunal. Normally it is for the tribunal to consider from what date the award should take effect and having regard to the fact that the workmen in question are employed in agricultural labour the tribunal thought that the operation of the award should begin from the date when the award was pronounced. In this view of the matter, we are reluctant to interfere with the direction of the tribunal. | 0 | 1,273 | 457 | ### 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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provided for the workmen ? What should be the rate of payment to the loading mazdoors for loading cane and such other purposes? (4) Whether a scheme of provident fund and retirement gratuity should be introduced? If so, what should be the scheme? (5) Whether Anchit Roy and Raghunandan Singh, two watchmen, be reinstated or/and otherwise compensated? (6) Whether normal workload be fixed for each individual and group of workmen for different kinds of work? If so, what should be the workload?" 2. The learned Additional Solicitor-General has fairly not pressed his appeals in respect of issues (1), (3), (4) and (5). He wanted to argue the question about the fixation of age which was covered by point (3) and he stated to us that the workmen also challenged age fixation of wage from that point of view. We then intimated to the learned counsel appearing for both the parties that that was a matter of fact and we did not propose to interfere with the conclusion of the tribunal on that point. So issue (3) also does not remain to be considered in the employers appeals.That leaves the appeal by the workmen. In this appeal Sri Roy has urged that the tribunal was in error in respect of one condition introduced by it in the scheme of gratuity framed by it. This is condition (4). This condition provides that no gratuity shall be payable to a workman dismissed for misconduct involving moral turpitude. Sri Roy contends that the introduction of this condition is inconsistent with the principles laid down by this Court in Garment Cleaning Works v. Its workmen [1961 - I L.L.J. 513]. In that case this Court has held that gratuity is not paid to an employee gratuitously or merely as a matter of boon, but is paid to him for the service rendered by him to the employer. Consequently he should not be wholly deprived of the benefit thus earned by long and meritorious service even thought at the end of such service he might have been found guilty of misconduct which entailed his dismissal. In our opinion, the contention raised by Sri Roy in respect of this condition raised well-founded. We would, therefore, direct that instead of the said clause another clause should be substituted in the scheme of gratuity. The provision should be that while paying the gratuity to a workman who is dismissed for misconduct only such amount should be deducted from the gratuity due to him in respect of which loss may have been caused by the misconduct of the employee. 3. The other contention which Sri Roy has raised on behalf of the workmen is in regard to the order passed by the tribunal holding that the dismissal of the employee Anchit Roy was justified. It appears that this employee was transferred and he refused to obey the order of transfer. The tribunal has found that the order of transfer did not amount to a punishment nor was it passed to victimize the employee. It appears that it was urged before the tribunal that the transfer in substance directed the employee to go to a lower post. This contention also has been rejected by the tribunal. Sri Roy contends that the finding made by the tribunal on this issue is not supported by any evidence on the record and he urged that in respect of this dismissal no evidence has been led by the employer. The only document which they produced before the tribunal was an envelope which was sent to the employee by registered post and it was suggested by the employer that the employee refused to take delivery of the said letter. Sri Roy contends that in view of the fact that the workman has denied that he refused to take the registered letter the employer should have proved that fact by independent evidence. We are not impressed by this argument. But apart from the question as to whether the employee refused to take delivery of the envelope, it is plain that the employee who gave evidence has admitted that on 8 April, 1957 he was transferred work as Jirat chaukidar at Motipur centre and he did not go. 4. Therefore, the contention that there is no evidence to support the finding of the tribunal that the employee refused to obey the order of transfer is plainly misconceived. Whether or not the evidence given by the employee justified the said conclusion would be a matter of appreciating evidence and this Court in dealing with industrial appeal under Art. 136 ordinarily does not enter into question of fact. In our opinion, therefore, there is no substance in the argument urged by Sri Roy, that the finding made by the tribunal in respect of the dismissal of this employee is invalid in law.There is one more point which Sri Roy has urged before us and that is in regard to the date from which the award has been ordered by the tribunal to come into force. It does appear that though the reference in the present case was made as early as in 1957 the award was ultimately pronounced in 1963. Sri Roy contends that in view of the fact that the proceedings before the tribunal took such a long time it would be unfair not to direct the payment of the wages as devised by the tribunal from the date of the reference. It is true that these proceedings had taken an unduly long time, but we do not see any justification for interfering with the order passed by the tribunal. Normally it is for the tribunal to consider from what date the award should take effect and having regard to the fact that the workmen in question are employed in agricultural labour the tribunal thought that the operation of the award should begin from the date when the award was pronounced. In this view of the matter, we are reluctant to interfere with the direction of the tribunal. 5.
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In our opinion, the contention raised by Sri Roy in respect of this condition raised. We would, therefore, direct that instead of the said clause another clause should be substituted in the scheme of gratuity. The provision should be that while paying the gratuity to a workman who is dismissed for misconduct only such amount should be deducted from the gratuity due to him in respect of which loss may have been caused by the misconduct of the employeeWe are not impressed by this argument. But apart from the question as to whether the employee refused to take delivery of the envelope, it is plain that the employee who gave evidence has admitted that on 8 April, 1957 he was transferred work as Jirat chaukidar at Motipur centre and he did not go.Therefore, the contention that there is no evidence to support the finding of the tribunal that the employee refused to obey the order of transfer is plainly misconceived. Whether or not the evidence given by the employee justified the said conclusion would be a matter of appreciating evidence and this Court in dealing with industrial appeal under Art. 136 ordinarily does not enter into question of fact. In our opinion, therefore, there is no substance in the argument urged by Sri Roy, that the finding made by the tribunal in respect of the dismissal of this employee is invalid in law.There is one more point which Sri Roy has urged before us and that is in regard to the date from which the award has been ordered by the tribunal to come into force. It does appear that though the reference in the present case was made as early as in 1957 the award was ultimately pronounced in 1963. Sri Roy contends that in view of the fact that the proceedings before the tribunal took such a long time it would be unfair not to direct the payment of the wages as devised by the tribunal from the date of the reference. It is true that these proceedings had taken an unduly long time, but we do not see any justification for interfering with the order passed by the tribunal. Normally it is for the tribunal to consider from what date the award should take effect and having regard to the fact that the workmen in question are employed in agricultural labour the tribunal thought that the operation of the award should begin from the date when the award was pronounced. In this view of the matter, we are reluctant to interfere with the direction of the tribunal.
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Municipal Council, Damoh Vs. Vrajlal Manilal And Co. | not applicable to cases of manufactured goods falling under cl. (b) of the rule the second contention urged by the Counsel for the appellant that the respondent-firms were not entitled to refund as they failed to satisfy the Municipal Committee that the same or identical goods had been exported does not survive. That apart, the High Court has on a conspectus of the Octroi Rules came to the conclusion and in our view rightly, that the Octroi Superintendent is responsible for the proper administration of the Octroi Department in all its branches which necessarily includes that it is he who should be satisfied as to the identity of the goods that are to be exported or that are utilized in the manufacture of goods which are to be exported.4. The last contention sought to be urged on behalf of the appellant-council before us related to the bar of limitation to the respondents claim arising under section 319 (2) of the Madhya Pradesh Municipalities Act, 1961 and counsel fairly stated that this arises only in Civil Appeal No. 845 of 1971. The facts in this behalf are these: Civil Suit No. 1-B of 1964, out of which the aforesaid appeal arises, was filed by the respondent-firm M/s Vraj Lal Manilal &Co. on 7.5.1964 claiming refund i n respect of goods exported during the years 1959-1964; in other words, part of the claim from 1959 to 31st January, 1962 arose under 1922 Act while the claim pertaining to the period from 1.2.1962 to April 1964 arose under the 1961 Act, which c ame into force from 1.2.1962. The trial Court as well as the High Court took the view that non-payment of refund under the 1922 Act could be agitated only by way of an appeal under section 83 and other remedies were barred under s. 84 of the Act and, therefore, that part of the respondents claim was dismissed as being not tenable but both the Courts held that non-payment of refund after 1.2.1962 could be agitated by a suit and the same was tenable On the question of limitation the trial C ourt held that that part of the claim was not barred but since it had negatived the respondents claim for refund on merits it dismissed the respondents suit entirely but the High Court, which reversed the trial Courts view on merits allowed the r espondents claim in respect of refund vouchers which had been certified and presented after 1.2.1962. Since, however, it was not possible for it to sort out the refund vouchers which had been certified the High Court by its judgment and decree d ated 15.12.1969 remanded the matter to the trial Court for determining the amount payable to the respondent-firm. Upon remand the trial Court on the basis of statements made by the parties passed a decree in respondents favour for Rs. 21, 023.5 3 with interest thereon 4% and this decree was drawn up on 23.4.1970.Section 319 (2) of the 1961 Act runs thus;"Every such suit shall be dismissed unless it is instituted within 8 months from the date of the accrual of the alleged cause of action."5. Relying upon this provision counsel for the appellant urged that since the suit had been filed on 7.5.1964 the respondents claim for refund during 8 months prior to 7.5.1964 would be within limitation but the rest of the claim from 1.2.1962 to 7.9.1963 would be barred by limitation and to that extent the decree in favour of the respondent-firm deserves to be modified6. We are not inclined to entertain this contention sought to be urged by counsel for the appellant before us for more than one reason. It is true that this bar of limitation under s. 319 (2) was pleaded by the appellant council in its written statement and an issue thereon was also raised at the trial but the trial Court held that the claim arising under the new Act after 1.2.1962 was not barred by limitation because cause of action arose on 24.9.1963 when there was refusal to pay or accede to the notice of demand but when the matter was carried in appeal to the High Court by the respondent firm against the dismissal of their claim on merits and the High Court reversed the trial Courts view on merits and held that the plaintiffs claim for the period subsequent to 1.2.1962 was liable to be decreed, this point of limitation arising under s. 319 (2) was neither raised nor pressed before the High Court. No contention was raised that the refusal to pay on 24.9.1963 did not give rise to the cause of action but that it arose on dates when goods were exported and refund vouchers were presented or certified. Had it been pressed the High Court would have, while remanding the matter given appropriate directions to the trial Court in that behalf. This shows that the appellant council acquiesced in the trial Courts finding on the question of limitation, namely, the cause of action arose on 24.9.1963. Secondly, while applying for a certificate from the High Court for appeal to this Court the appellant-Council sought the certificate on points touching the merits of the claim and not on the question of limitation. Further in the Memo of Appeal filed in this Court the grounds do not include the point of limitation. Lastly the point raised cannot be said to be a pure question of law as it will require investigation into facts to ascertain the exact date or dates of accrual of the cause of action. When on the point of limitation the appellant- Council had at one stage acquiesced in the trial Courts finding and did not raise the question in appeal before the High Court we do not think it would be fair or just to permit the appellant-Council to raise the plea of limitation in this Court, especially when the result of allowing such plea might be to defeat the just claim of the respondent firm. | 0[ds]The admitted facts in these appeals are that the respondent firms, who carry on the business of manufacturing and selling bidis imported or brought into the municipal limits of Damoh during the relevant period tobacco and other raw material, that they paid the requisite octroi duty on such raw material on its import at the prescribed rates, that they utilised the said raw material for manufacturing bidis and they exported the finished product (bidis) outside the municipal limits of Damoh and it was at that stage of export of bidis that they claimed under Rule 27 (b) a refund of octori duty paid by them on the ra w material from the appellantat from this angle it will be difficult to accept the narrow or limited construction of the word manufacture appearing in cl. (b) as is suggested by Counsel for the appellant an d the same could not have been intended by the framers of the rule. Further clause (b) itself speaks of the raw materials being "used in the manufacture" so that use or consumption which a manufacturing process entails was present to the mind of the framers of the Rule when they provided for the refund on the export of finished goods manufactured within the municipal limits. Moreover, the well-settled connotation of the concept of manufacture and manufacturing process is t hat as a result of undergoing the process a distinct commercial commodity different from the raw materials comes into existence; it is difficult to visualise degrees of manufacture as suggested by counsel for the appellant and in any case none could be attributed to the framers of the Rule. It is, therefore, not possible to accept the contention that the expression "manufacture" occurring in cl. (b) of Rule 27 should be given a limited meaning as is suggested. Turning to the proviso on which strong reliance was placed by the counsel for the appellant, it seems to us that the proviso by its very terms is not attracted to a case of manufactured goods falling under cl. (b). If cl. (b) confers the benefit of refund of octroi duty on the export of goods manufactured out of raw material then it is difficult to appreciate how the exporter will be able to satisfy the Municipal Committee that the exported goods are the same or identical on which duty has been paid, for admittedly the exported goods are the finished product and no import duty is paid thereon by the exporter. The proviso in our view is applicable to cases where there is an export of the imported goods themselves without subjecting the m to any manufacturing process and it is in such cases that the exporter has to satisfy the Committee that the same goods on which import duty has been paid are being exported which would entitle the exporter to claim a refund; in other words it is not a proviso to cl. (b) at all but will be applicable to the other parts of the Rule. It is thus clear to us that when raw materials like tobacco etc. were imported by the respondent-firms within the limits of Damoh, on which they paid octroi-duty a nd when they manufactured bidis out of such raw-materials and exported the same they were entitled to get refund to the extent of quantum mentioned in cl. (b) of Rule 27.In view of our aforesaid conclusion that the proviso is not applicable to cases of manufactured goods falling under cl. (b) of the rule the second contention urged by the Counsel for the appellant that the respondent-firms were not entitled to refund as they failed to satisfy the Municipal Committee that the same or identical goods had been exported does not survive. That apart, the High Court has on a conspectus of the Octroi Rules came to the conclusion and in our view rightly, that the Octroi Superintendent is responsible for the proper administration of the Octroi Department in all its branches which necessarily includes that it is he who should be satisfied as to the identity of the goods that are to be exported or that are utilized in the manufacture of goods which are to belast contention sought to be urged on behalf of the appellant-council before us related to the bar of limitation to the respondents claim arising under section 319 (2) of the Madhya Pradesh Municipalities Act, 1961 and counsel fairly stated that this arises only in Civil Appeal No. 845 of 1971. The facts in this behalf are these: Civil Suit No. 1-B of 1964, out of which the aforesaid appeal arises, was filed by the respondent-firm M/s Vraj Lal Manilal &Co. on 7.5.1964 claiming refund i n respect of goods exported during the years 1959-1964; in other words, part of the claim from 1959 to 31st January, 1962 arose under 1922 Act while the claim pertaining to the period from 1.2.1962 to April 1964 arose under the 1961 Act, which c ame into force from 1.2.1962. The trial Court as well as the High Court took the view that non-payment of refund under the 1922 Act could be agitated only by way of an appeal under section 83 and other remedies were barred under s. 84 of the Act and, therefore, that part of the respondents claim was dismissed as being not tenable but both the Courts held that non-payment of refund after 1.2.1962 could be agitated by a suit and the same was tenable On the question of limitation the trial C ourt held that that part of the claim was not barred but since it had negatived the respondents claim for refund on merits it dismissed the respondents suit entirely but the High Court, which reversed the trial Courts view on merits allowed the r espondents claim in respect of refund vouchers which had been certified and presented after 1.2.1962. Since, however, it was not possible for it to sort out the refund vouchers which had been certified the High Court by its judgment and decree d ated 15.12.1969 remanded the matter to the trial Court for determining the amount payable to the respondent-firm. Upon remand the trial Court on the basis of statements made by the parties passed a decree in respondents favour for Rs. 21, 023.5 3 with interest thereon 4% and this decree was drawn up on 23.4.1970.Section 319 (2) of the 1961are not inclined to entertain this contention sought to be urged by counsel for the appellant before us for more than one reason. It is true that this bar of limitation under s. 319 (2) was pleaded by the appellant council in its written statement and an issue thereon was also raised at the trial but the trial Court held that the claim arising under the new Act after 1.2.1962 was not barred by limitation because cause of action arose on 24.9.1963 when there was refusal to pay or accede to the notice of demand but when the matter was carried in appeal to the High Court by the respondent firm against the dismissal of their claim on merits and the High Court reversed the trial Courts view on merits and held that the plaintiffs claim for the period subsequent to 1.2.1962 was liable to be decreed, this point of limitation arising under s. 319 (2) was neither raised nor pressed before the High Court. No contention was raised that the refusal to pay on 24.9.1963 did not give rise to the cause of action but that it arose on dates when goods were exported and refund vouchers were presented or certified. Had it been pressed the High Court would have, while remanding the matter given appropriate directions to the trial Court in that behalf. This shows that the appellant council acquiesced in the trial Courts finding on the question of limitation, namely, the cause of action arose on 24.9.1963. Secondly, while applying for a certificate from the High Court for appeal to this Court the appellant-Council sought the certificate on points touching the merits of the claim and not on the question of limitation. Further in the Memo of Appeal filed in this Court the grounds do not include the point of limitation. Lastly the point raised cannot be said to be a pure question of law as it will require investigation into facts to ascertain the exact date or dates of accrual of the cause of action. When on the point of limitation the appellant- Council had at one stage acquiesced in the trial Courts finding and did not raise the question in appeal before the High Court we do not think it would be fair or just to permit the appellant-Council to raise the plea of limitation in this Court, especially when the result of allowing such plea might be to defeat the just claim of the respondent firm. | 0 | 3,638 | 1,580 | ### Instruction:
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not applicable to cases of manufactured goods falling under cl. (b) of the rule the second contention urged by the Counsel for the appellant that the respondent-firms were not entitled to refund as they failed to satisfy the Municipal Committee that the same or identical goods had been exported does not survive. That apart, the High Court has on a conspectus of the Octroi Rules came to the conclusion and in our view rightly, that the Octroi Superintendent is responsible for the proper administration of the Octroi Department in all its branches which necessarily includes that it is he who should be satisfied as to the identity of the goods that are to be exported or that are utilized in the manufacture of goods which are to be exported.4. The last contention sought to be urged on behalf of the appellant-council before us related to the bar of limitation to the respondents claim arising under section 319 (2) of the Madhya Pradesh Municipalities Act, 1961 and counsel fairly stated that this arises only in Civil Appeal No. 845 of 1971. The facts in this behalf are these: Civil Suit No. 1-B of 1964, out of which the aforesaid appeal arises, was filed by the respondent-firm M/s Vraj Lal Manilal &Co. on 7.5.1964 claiming refund i n respect of goods exported during the years 1959-1964; in other words, part of the claim from 1959 to 31st January, 1962 arose under 1922 Act while the claim pertaining to the period from 1.2.1962 to April 1964 arose under the 1961 Act, which c ame into force from 1.2.1962. The trial Court as well as the High Court took the view that non-payment of refund under the 1922 Act could be agitated only by way of an appeal under section 83 and other remedies were barred under s. 84 of the Act and, therefore, that part of the respondents claim was dismissed as being not tenable but both the Courts held that non-payment of refund after 1.2.1962 could be agitated by a suit and the same was tenable On the question of limitation the trial C ourt held that that part of the claim was not barred but since it had negatived the respondents claim for refund on merits it dismissed the respondents suit entirely but the High Court, which reversed the trial Courts view on merits allowed the r espondents claim in respect of refund vouchers which had been certified and presented after 1.2.1962. Since, however, it was not possible for it to sort out the refund vouchers which had been certified the High Court by its judgment and decree d ated 15.12.1969 remanded the matter to the trial Court for determining the amount payable to the respondent-firm. Upon remand the trial Court on the basis of statements made by the parties passed a decree in respondents favour for Rs. 21, 023.5 3 with interest thereon 4% and this decree was drawn up on 23.4.1970.Section 319 (2) of the 1961 Act runs thus;"Every such suit shall be dismissed unless it is instituted within 8 months from the date of the accrual of the alleged cause of action."5. Relying upon this provision counsel for the appellant urged that since the suit had been filed on 7.5.1964 the respondents claim for refund during 8 months prior to 7.5.1964 would be within limitation but the rest of the claim from 1.2.1962 to 7.9.1963 would be barred by limitation and to that extent the decree in favour of the respondent-firm deserves to be modified6. We are not inclined to entertain this contention sought to be urged by counsel for the appellant before us for more than one reason. It is true that this bar of limitation under s. 319 (2) was pleaded by the appellant council in its written statement and an issue thereon was also raised at the trial but the trial Court held that the claim arising under the new Act after 1.2.1962 was not barred by limitation because cause of action arose on 24.9.1963 when there was refusal to pay or accede to the notice of demand but when the matter was carried in appeal to the High Court by the respondent firm against the dismissal of their claim on merits and the High Court reversed the trial Courts view on merits and held that the plaintiffs claim for the period subsequent to 1.2.1962 was liable to be decreed, this point of limitation arising under s. 319 (2) was neither raised nor pressed before the High Court. No contention was raised that the refusal to pay on 24.9.1963 did not give rise to the cause of action but that it arose on dates when goods were exported and refund vouchers were presented or certified. Had it been pressed the High Court would have, while remanding the matter given appropriate directions to the trial Court in that behalf. This shows that the appellant council acquiesced in the trial Courts finding on the question of limitation, namely, the cause of action arose on 24.9.1963. Secondly, while applying for a certificate from the High Court for appeal to this Court the appellant-Council sought the certificate on points touching the merits of the claim and not on the question of limitation. Further in the Memo of Appeal filed in this Court the grounds do not include the point of limitation. Lastly the point raised cannot be said to be a pure question of law as it will require investigation into facts to ascertain the exact date or dates of accrual of the cause of action. When on the point of limitation the appellant- Council had at one stage acquiesced in the trial Courts finding and did not raise the question in appeal before the High Court we do not think it would be fair or just to permit the appellant-Council to raise the plea of limitation in this Court, especially when the result of allowing such plea might be to defeat the just claim of the respondent firm.
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a refund; in other words it is not a proviso to cl. (b) at all but will be applicable to the other parts of the Rule. It is thus clear to us that when raw materials like tobacco etc. were imported by the respondent-firms within the limits of Damoh, on which they paid octroi-duty a nd when they manufactured bidis out of such raw-materials and exported the same they were entitled to get refund to the extent of quantum mentioned in cl. (b) of Rule 27.In view of our aforesaid conclusion that the proviso is not applicable to cases of manufactured goods falling under cl. (b) of the rule the second contention urged by the Counsel for the appellant that the respondent-firms were not entitled to refund as they failed to satisfy the Municipal Committee that the same or identical goods had been exported does not survive. That apart, the High Court has on a conspectus of the Octroi Rules came to the conclusion and in our view rightly, that the Octroi Superintendent is responsible for the proper administration of the Octroi Department in all its branches which necessarily includes that it is he who should be satisfied as to the identity of the goods that are to be exported or that are utilized in the manufacture of goods which are to belast contention sought to be urged on behalf of the appellant-council before us related to the bar of limitation to the respondents claim arising under section 319 (2) of the Madhya Pradesh Municipalities Act, 1961 and counsel fairly stated that this arises only in Civil Appeal No. 845 of 1971. The facts in this behalf are these: Civil Suit No. 1-B of 1964, out of which the aforesaid appeal arises, was filed by the respondent-firm M/s Vraj Lal Manilal &Co. on 7.5.1964 claiming refund i n respect of goods exported during the years 1959-1964; in other words, part of the claim from 1959 to 31st January, 1962 arose under 1922 Act while the claim pertaining to the period from 1.2.1962 to April 1964 arose under the 1961 Act, which c ame into force from 1.2.1962. The trial Court as well as the High Court took the view that non-payment of refund under the 1922 Act could be agitated only by way of an appeal under section 83 and other remedies were barred under s. 84 of the Act and, therefore, that part of the respondents claim was dismissed as being not tenable but both the Courts held that non-payment of refund after 1.2.1962 could be agitated by a suit and the same was tenable On the question of limitation the trial C ourt held that that part of the claim was not barred but since it had negatived the respondents claim for refund on merits it dismissed the respondents suit entirely but the High Court, which reversed the trial Courts view on merits allowed the r espondents claim in respect of refund vouchers which had been certified and presented after 1.2.1962. Since, however, it was not possible for it to sort out the refund vouchers which had been certified the High Court by its judgment and decree d ated 15.12.1969 remanded the matter to the trial Court for determining the amount payable to the respondent-firm. Upon remand the trial Court on the basis of statements made by the parties passed a decree in respondents favour for Rs. 21, 023.5 3 with interest thereon 4% and this decree was drawn up on 23.4.1970.Section 319 (2) of the 1961are not inclined to entertain this contention sought to be urged by counsel for the appellant before us for more than one reason. It is true that this bar of limitation under s. 319 (2) was pleaded by the appellant council in its written statement and an issue thereon was also raised at the trial but the trial Court held that the claim arising under the new Act after 1.2.1962 was not barred by limitation because cause of action arose on 24.9.1963 when there was refusal to pay or accede to the notice of demand but when the matter was carried in appeal to the High Court by the respondent firm against the dismissal of their claim on merits and the High Court reversed the trial Courts view on merits and held that the plaintiffs claim for the period subsequent to 1.2.1962 was liable to be decreed, this point of limitation arising under s. 319 (2) was neither raised nor pressed before the High Court. No contention was raised that the refusal to pay on 24.9.1963 did not give rise to the cause of action but that it arose on dates when goods were exported and refund vouchers were presented or certified. Had it been pressed the High Court would have, while remanding the matter given appropriate directions to the trial Court in that behalf. This shows that the appellant council acquiesced in the trial Courts finding on the question of limitation, namely, the cause of action arose on 24.9.1963. Secondly, while applying for a certificate from the High Court for appeal to this Court the appellant-Council sought the certificate on points touching the merits of the claim and not on the question of limitation. Further in the Memo of Appeal filed in this Court the grounds do not include the point of limitation. Lastly the point raised cannot be said to be a pure question of law as it will require investigation into facts to ascertain the exact date or dates of accrual of the cause of action. When on the point of limitation the appellant- Council had at one stage acquiesced in the trial Courts finding and did not raise the question in appeal before the High Court we do not think it would be fair or just to permit the appellant-Council to raise the plea of limitation in this Court, especially when the result of allowing such plea might be to defeat the just claim of the respondent firm.
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KARNATAKA STATE POLLUTION CONTROL BOARD Vs. B. HEERA NAIK | the definition of Company in the Companies Act and it includes any body corporate. Paragraphs 12 and 13 of the judgment is as follows: 12. Then so far offence Under Section 138 of N.I. Act, it is apt to refer, at first, the provisions of Section 141. Section 141 of the Act reads as follows: 141. Offences by companies. (1) If the person committing an offence Under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this Sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence; Provided further that where a person is nominated as a Director of a Company by virtue of his holding any office or employment in the Central Government or State Government or a financial Corporation owned or controlled by the Central Govt. or the State Govt., as the case may be, he shall not be liable for prosecution under this Chapter. (2)... Explanation: For the purpose of this section. (a) Company means any body corporate and includes a firm or other association of individuals; and (b) director, in relating to a firm, means a partner in the firm. 13. The Explanation (a) of the above section, therefore, is clear that the definition of Company as given therein is wider than the definition of Company in the Companies Act and it includes any body corporate. Section 5 of the Patna Municipal Corporation Act also shows that the Company is a body corporate. Therefore, there cannot be any doubt that Patna Municipal Corporation is a Company under the N.I. Act. The above is correct interpretation of Explanation (a) by the Patna High Court. The Explanation of Section 47 of Act, 1974 and the Explanation (a) to Section 141 of the Negotiable Instruments Act are pari materia. 29. We, thus, looking to the purpose and object of Act, 1974, are of the opinion that Section 47 can be resorted to for offences by body corporate and Karnataka State Pollution Control Board by filing a complaint before the Magistrate for taking cognizance of offence Under Section 49 did not commit an error. 30. There is one more aspect of the matter, which need to be noticed. Section 49 of the Act, 1974 deals with cognizance of offences, which is as follows: 49. Cognizance of offences.--(1) No court shall take cognizance of any offence under this Act except on a complaint made by- (a) a Board or any officer authorised in this behalf by it; or (b) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint, to the Board or officer authorised as aforesaid, and no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act. (2) Where a complaint has been made under Clause (b) of Sub-section (1), the Board shall, on demand by such person, make available the relevant reports in its possession to that person: Provided that the Board may refuse to make any such report available to such person if the same is in its opinion, against the public interest. (3) Notwithstanding anything contained in Section 29 of the Code of Criminal Procedure, 1973 (2 of 1974), it shall be lawful for any Judicial Magistrate of the first class or for any Metropolitan Magistrate to pass a sentence of imprisonment for a term exceeding two years or of fine exceeding two thousand rupees on any person convicted of an offence punishable under this Act. 31. Section 49 embraces cognizance of all offences under the Act. Whether the offences are covered by Section 47 or 48 has no bearing on the power of the Court to take cognizance of an offence. Karnataka State Pollution Control Board has filed complaint for taking cognizance specifically referring to Section 49 of the Act, 1974. Thus, in event any offence is committed by anyone, its cognizance can be taken Under Section 49. We, however, reiterate that offences by a body corporate are to be covered by Section 47, since in event offences by body corporates are not covered by Section 47, the benefit of Section 47(1) proviso shall not be available to those body corporates, which cannot be the intention of the Legislature. We, thus, conclude that offences by body corporate like City Municipal Council are covered Under Section 49 treating it to be offence as by company as provided in Section 47. 32. We may also notice the judgment of this Court in Criminal Appeal No. 755 of 2010 - V.C. Chinnappa Goudar v. Karnataka State Pollution Control Board and Anr. decided on 10.03.2015, where the judgment of the Division Bench of the Karnataka High Court in V.C. Chinnappa Goudar (supra) had been affirmed. In the above case although this Court dismissed the appeal filed by the Appellant, who was also a Municipal Commissioner of the Municipal Council, for quashing of the complaint filed by the Karnataka State Pollution Control Board, but the ratio of the judgment is to the effect that sanction Under Section 197 Code of Criminal Procedure is not required for proceeding Under Section 49 of the Act, 1974. Although reference to Section 48 has been mentioned in the judgment of this Court but there is no further consideration with regard to Section 48. 33. In view of the foregoing discussions, we are of the view that High Court erred in quashing the complaint filed by Karnataka State Pollution Control Board against the Respondents. | 0[ds]8. The High Court in the impugned judgment for coming to the conclusion that Commissioner of Municipal Council, Chief Officer or a Council cannot be termed as Head of the Department, has placed reliance on two earlier judgments of the High Court namely, (i) Criminal Petition No. 831 of 2007 dated 18.01.2012 and (ii) a Division Bench judgment of the High Court dated 30.10.2008 in Writ Petition (C) No. 30610 of 2008 - Sri V.C. Chinnappa Goudar v. Karnataka State Pollution Control Board9. We have gone through the judgment of the Division Bench of the Karnataka High Court in V.C. Chinnappa Goudar (supra), which was a writ petition filed by a Commissioner of City Municipal Council challenging the proceeding initiated by Karnataka State Pollution Control Board, the challenge in the writ petition was to quash the proceedings on the ground that action initiated against the Petitioner is without jurisdiction for want of previous sanction from the Government as per Section 197 Code of Criminal Procedure The Division Bench after considering the provisions of Act, 1974 and Code of Criminal Procedure came to conclusion that no previous sanction is required for initiating the legal action against such person by Board for offence contravening Section 48 of the Act, 1974 and the writ petition was accordingly dismissed. There was neither any discussion in the judgment that Commissioner of Municipal Council is not Head of the Department of any Department of Government nor there was any ratio to the above effect. Another judgment relied by High Court is the decision of the High Court in Criminal Petition No. 831 of 2007 - - Shri D.H. Raya v. Karnataka State Pollution Control Board, which is also brought on the record as Annexure P-11. The said judgment was also a petition Under Section 482 Code of Criminal Procedure filed by Chief Officer of a Town Municipal Council praying for quashing the complaint filed by Karnataka State Pollution Control Board for offence Under Section 25 of Act, 1974. The High Court relied on the earlier Division Bench judgment of this Court in Criminal Appeal No. - 755 of 2010 - V.C. Chinnappa Goudar (supra) and allowed the petition. There was neither any discussion in the judgment that Chief Officer is not the Head of the Department of any Department of Government nor there was any ratio to the above effect. Thus, the judgment of the High Court quashing the complaint was misplacedWhether an institution is a corporation or a Department of the Government has to be found out from the Scheme under which it has been created. One of the tests to find out as to whether an institution is a Corporation or a Department of the Government is to enquire whether the undertaking functions as a responsible independent organisation and not as part of any Department of the State. Second test would be to see whether it is endowed with the capacity to contract obligations and of suing and being sued. Further, the power to possess, use and change a seal is incidental to a corporation and a corporation aggregate can, as a general rule, only act or express its will by deed under its common seal. The Karnataka Municipalities Act, 1964 as noted above, provides for a Town and City Municipal Councils as a body corporate. The control of the State Government on the Municipality is provided in a separate chapter, i.e., Chapter XII. The Scheme of constitution of Municipal area and other provisions of Act, 1964 clearly indicate that Municipalities are not a Department of the Government16. We may also notice the constitutional provisions of Part IXA, the Municipalities inserted by Constitution (Seventy Fourth) Amendment Act, 1992. Article 243P Sub-clause (e) defines Municipality as an institution of self-Government constituted Under Article 243Q. The Constitution also envisages Municipality as a body of self-Government. The provisions of the Act, 1964 and Act, 1974 makes it clear that City Municipal Council cannot be treated as Department of the State Government20. In a Statute, the definition of an expression has to be found out in accordance with the context and Scheme of the enactment. The definition of company is contained in the Companies Act, 1956 in Section 3. The definition of company as contained in the Companies Act, 1956 is clearly not borrowed in the expression of company as used in Section 47 of Act, 1974. The company has been defined in Section 47 of Act, 1974 in a very wide and inclusive manner. Explanation states that company means any body corporate. Thus, all body corporates are included within the definition of company as per Section 47. There cannot be any dispute that City Municipal Council is a body corporate, which has been clearly provided Under Section 10 of Act, 1964 as noted above21. In Hakam Singh v. M/s. Gammon (India) Ltd.(1971) 1 SCC 286 , this Court while considering the Explanation II to Section 20 Code of Civil Procedure had held that use of word Corporation in Explanation II also includes the company. In paragraph 6, following has been laid down:6. The argument of counsel for the Appellant that the expression corporation in Explanation II includes only a statutory corporation and not a company registered under the Indian Companies Act is, in our judgment, without substance. The Code of Civil Procedure uses the expression corporation as meaning a legal person and includes a company registered under the Indian Companies Act. Order 29 of the Code of Civil Procedure deals with suits by or against a corporation and there is nothing in the Code of Civil Procedure that a corporation referred to Under Order 20 means only a statutory corporation and not a company registered under the Indian Companies ActFrom the above, it is clear that the meaning and definition of an expression used in an enactment has to be determined from the particular Statute. In Code of Civil Procedure, Explanation to Section 20, only word corporation was used, which was held to include a company also22. The expression company has been used in different statutes with different purpose and object. This Court as well as the High Courts had occasion to consider the meaning of company in reference to different Statutes28. Patna High Court in Criminal Misc. No. 7268 of 2005 - Arun Kumar Singh v. The State of Bihar and Ors. while noticing Section 141 specifically the Explanation held that the definition of Company as given therein is wider than the definition of Company in the Companies Act and it includes any body corporate. Paragraphs 12 and 13 of the judgment is as follows:12. Then so far offence Under Section 138 of N.I. Act, it is apt to refer, at first, the provisions of Section 141. Section 141 of the Act reads as follows:(1) If the person committing an offence Under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:Provided that nothing contained in this Sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence;Explanation: For the purpose of this section(a) Company means any body corporate and includes a firm or other association of individuals; and(b) director, in relating to a firm, means a partner in the firm13. The Explanation (a) of the above section, therefore, is clear that the definition of Company as given therein is wider than the definition of Company in the Companies Act and it includes any body corporate. Section 5 of the Patna Municipal Corporation Act also shows that the Company is a body corporate. Therefore, there cannot be any doubt that Patna Municipal Corporation is a Company under the N.I. ActThe above is correct interpretation of Explanation (a) by the Patna High Court. The Explanation of Section 47 of Act, 1974 and the Explanation (a) to Section 141 of the Negotiable Instruments Act are pari materia29. We, thus, looking to the purpose and object of Act, 1974, are of the opinion that Section 47 can be resorted to for offences by body corporate and Karnataka State Pollution Control Board by filing a complaint before the Magistrate for taking cognizance of offence Under Section 49 did not commit an error31. Section 49 embraces cognizance of all offences under the Act. Whether the offences are covered by Section 47 or 48 has no bearing on the power of the Court to take cognizance of an offence. Karnataka State Pollution Control Board has filed complaint for taking cognizance specifically referring to Section 49 of the Act, 1974. Thus, in event any offence is committed by anyone, its cognizance can be taken Under Section 49. We, however, reiterate that offences by a body corporate are to be covered by Section 47, since in event offences by body corporates are not covered by Section 47, the benefit of Section 47(1) proviso shall not be available to those body corporates, which cannot be the intention of the Legislature. We, thus, conclude that offences by body corporate like City Municipal Council are covered Under Section 49 treating it to be offence as by company as provided in Section 4732. We may also notice the judgment of this Court in Criminal Appeal No. 755 of 2010 - V.C. Chinnappa Goudar v. Karnataka State Pollution Control Board and Anr. decided on 10.03.2015, where the judgment of the Division Bench of the Karnataka High Court in V.C. Chinnappa Goudar (supra) had been affirmed. In the above case although this Court dismissed the appeal filed by the Appellant, who was also a Municipal Commissioner of the Municipal Council, for quashing of the complaint filed by the Karnataka State Pollution Control Board, but the ratio of the judgment is to the effect that sanction Under Section 197 Code of Criminal Procedure is not required for proceeding Under Section 49 of the Act, 1974. Although reference to Section 48 has been mentioned in the judgment of this Court but there is no further consideration with regard to Section 4833. In view of the foregoing discussions, we are of the view that High Court erred in quashing the complaint filed by Karnataka State Pollution Control Board against the Respondents. | 0 | 7,943 | 1,949 | ### Instruction:
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the definition of Company in the Companies Act and it includes any body corporate. Paragraphs 12 and 13 of the judgment is as follows: 12. Then so far offence Under Section 138 of N.I. Act, it is apt to refer, at first, the provisions of Section 141. Section 141 of the Act reads as follows: 141. Offences by companies. (1) If the person committing an offence Under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this Sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence; Provided further that where a person is nominated as a Director of a Company by virtue of his holding any office or employment in the Central Government or State Government or a financial Corporation owned or controlled by the Central Govt. or the State Govt., as the case may be, he shall not be liable for prosecution under this Chapter. (2)... Explanation: For the purpose of this section. (a) Company means any body corporate and includes a firm or other association of individuals; and (b) director, in relating to a firm, means a partner in the firm. 13. The Explanation (a) of the above section, therefore, is clear that the definition of Company as given therein is wider than the definition of Company in the Companies Act and it includes any body corporate. Section 5 of the Patna Municipal Corporation Act also shows that the Company is a body corporate. Therefore, there cannot be any doubt that Patna Municipal Corporation is a Company under the N.I. Act. The above is correct interpretation of Explanation (a) by the Patna High Court. The Explanation of Section 47 of Act, 1974 and the Explanation (a) to Section 141 of the Negotiable Instruments Act are pari materia. 29. We, thus, looking to the purpose and object of Act, 1974, are of the opinion that Section 47 can be resorted to for offences by body corporate and Karnataka State Pollution Control Board by filing a complaint before the Magistrate for taking cognizance of offence Under Section 49 did not commit an error. 30. There is one more aspect of the matter, which need to be noticed. Section 49 of the Act, 1974 deals with cognizance of offences, which is as follows: 49. Cognizance of offences.--(1) No court shall take cognizance of any offence under this Act except on a complaint made by- (a) a Board or any officer authorised in this behalf by it; or (b) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint, to the Board or officer authorised as aforesaid, and no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act. (2) Where a complaint has been made under Clause (b) of Sub-section (1), the Board shall, on demand by such person, make available the relevant reports in its possession to that person: Provided that the Board may refuse to make any such report available to such person if the same is in its opinion, against the public interest. (3) Notwithstanding anything contained in Section 29 of the Code of Criminal Procedure, 1973 (2 of 1974), it shall be lawful for any Judicial Magistrate of the first class or for any Metropolitan Magistrate to pass a sentence of imprisonment for a term exceeding two years or of fine exceeding two thousand rupees on any person convicted of an offence punishable under this Act. 31. Section 49 embraces cognizance of all offences under the Act. Whether the offences are covered by Section 47 or 48 has no bearing on the power of the Court to take cognizance of an offence. Karnataka State Pollution Control Board has filed complaint for taking cognizance specifically referring to Section 49 of the Act, 1974. Thus, in event any offence is committed by anyone, its cognizance can be taken Under Section 49. We, however, reiterate that offences by a body corporate are to be covered by Section 47, since in event offences by body corporates are not covered by Section 47, the benefit of Section 47(1) proviso shall not be available to those body corporates, which cannot be the intention of the Legislature. We, thus, conclude that offences by body corporate like City Municipal Council are covered Under Section 49 treating it to be offence as by company as provided in Section 47. 32. We may also notice the judgment of this Court in Criminal Appeal No. 755 of 2010 - V.C. Chinnappa Goudar v. Karnataka State Pollution Control Board and Anr. decided on 10.03.2015, where the judgment of the Division Bench of the Karnataka High Court in V.C. Chinnappa Goudar (supra) had been affirmed. In the above case although this Court dismissed the appeal filed by the Appellant, who was also a Municipal Commissioner of the Municipal Council, for quashing of the complaint filed by the Karnataka State Pollution Control Board, but the ratio of the judgment is to the effect that sanction Under Section 197 Code of Criminal Procedure is not required for proceeding Under Section 49 of the Act, 1974. Although reference to Section 48 has been mentioned in the judgment of this Court but there is no further consideration with regard to Section 48. 33. In view of the foregoing discussions, we are of the view that High Court erred in quashing the complaint filed by Karnataka State Pollution Control Board against the Respondents.
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company means any body corporate. Thus, all body corporates are included within the definition of company as per Section 47. There cannot be any dispute that City Municipal Council is a body corporate, which has been clearly provided Under Section 10 of Act, 1964 as noted above21. In Hakam Singh v. M/s. Gammon (India) Ltd.(1971) 1 SCC 286 , this Court while considering the Explanation II to Section 20 Code of Civil Procedure had held that use of word Corporation in Explanation II also includes the company. In paragraph 6, following has been laid down:6. The argument of counsel for the Appellant that the expression corporation in Explanation II includes only a statutory corporation and not a company registered under the Indian Companies Act is, in our judgment, without substance. The Code of Civil Procedure uses the expression corporation as meaning a legal person and includes a company registered under the Indian Companies Act. Order 29 of the Code of Civil Procedure deals with suits by or against a corporation and there is nothing in the Code of Civil Procedure that a corporation referred to Under Order 20 means only a statutory corporation and not a company registered under the Indian Companies ActFrom the above, it is clear that the meaning and definition of an expression used in an enactment has to be determined from the particular Statute. In Code of Civil Procedure, Explanation to Section 20, only word corporation was used, which was held to include a company also22. The expression company has been used in different statutes with different purpose and object. This Court as well as the High Courts had occasion to consider the meaning of company in reference to different Statutes28. Patna High Court in Criminal Misc. No. 7268 of 2005 - Arun Kumar Singh v. The State of Bihar and Ors. while noticing Section 141 specifically the Explanation held that the definition of Company as given therein is wider than the definition of Company in the Companies Act and it includes any body corporate. Paragraphs 12 and 13 of the judgment is as follows:12. Then so far offence Under Section 138 of N.I. Act, it is apt to refer, at first, the provisions of Section 141. Section 141 of the Act reads as follows:(1) If the person committing an offence Under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:Provided that nothing contained in this Sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence;Explanation: For the purpose of this section(a) Company means any body corporate and includes a firm or other association of individuals; and(b) director, in relating to a firm, means a partner in the firm13. The Explanation (a) of the above section, therefore, is clear that the definition of Company as given therein is wider than the definition of Company in the Companies Act and it includes any body corporate. Section 5 of the Patna Municipal Corporation Act also shows that the Company is a body corporate. Therefore, there cannot be any doubt that Patna Municipal Corporation is a Company under the N.I. ActThe above is correct interpretation of Explanation (a) by the Patna High Court. The Explanation of Section 47 of Act, 1974 and the Explanation (a) to Section 141 of the Negotiable Instruments Act are pari materia29. We, thus, looking to the purpose and object of Act, 1974, are of the opinion that Section 47 can be resorted to for offences by body corporate and Karnataka State Pollution Control Board by filing a complaint before the Magistrate for taking cognizance of offence Under Section 49 did not commit an error31. Section 49 embraces cognizance of all offences under the Act. Whether the offences are covered by Section 47 or 48 has no bearing on the power of the Court to take cognizance of an offence. Karnataka State Pollution Control Board has filed complaint for taking cognizance specifically referring to Section 49 of the Act, 1974. Thus, in event any offence is committed by anyone, its cognizance can be taken Under Section 49. We, however, reiterate that offences by a body corporate are to be covered by Section 47, since in event offences by body corporates are not covered by Section 47, the benefit of Section 47(1) proviso shall not be available to those body corporates, which cannot be the intention of the Legislature. We, thus, conclude that offences by body corporate like City Municipal Council are covered Under Section 49 treating it to be offence as by company as provided in Section 4732. We may also notice the judgment of this Court in Criminal Appeal No. 755 of 2010 - V.C. Chinnappa Goudar v. Karnataka State Pollution Control Board and Anr. decided on 10.03.2015, where the judgment of the Division Bench of the Karnataka High Court in V.C. Chinnappa Goudar (supra) had been affirmed. In the above case although this Court dismissed the appeal filed by the Appellant, who was also a Municipal Commissioner of the Municipal Council, for quashing of the complaint filed by the Karnataka State Pollution Control Board, but the ratio of the judgment is to the effect that sanction Under Section 197 Code of Criminal Procedure is not required for proceeding Under Section 49 of the Act, 1974. Although reference to Section 48 has been mentioned in the judgment of this Court but there is no further consideration with regard to Section 4833. In view of the foregoing discussions, we are of the view that High Court erred in quashing the complaint filed by Karnataka State Pollution Control Board against the Respondents.
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Sasi (D) Thr Lrs Vs. Aravindakshan Nair And Ors | which passed the decree or made the order.(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.Explanation.- The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment."6. The grounds enumerated therein are specific. The principles for interference in exercise of review jurisdiction are well settled. The Court passing the order is entitled to review the order, if any of the grounds specified in the aforesaid provision are satisfied.7. In Thungabhadra Industries Ltd. v. Govt. of A.P., AIR 1964 SC 1372 the Court while dealing with the scope of review had opined:-"What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an `error apparent on the face of the record). The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an `error apparent on the face of the record, for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by `error apparent. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error."8. In Parsion Devi v. Sumitri Devi, 1997(4) R.C.R.(Civil) 458 : (1997) 8 SCC 715 , the Court after referring to Thungabhadra Industries Ltd. (supra), Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170 and Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389 , held thus:-"Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise"".9. The aforesaid authorities clearly spell out the nature, scope and ambit of power to be exercised. The error has to be self-evident and is not to be found out by a process of reasoning. We have adverted to the aforesaid aspects only to highlight the nature of review proceedings.10. In the case at hand, be it clearly stated, we are really not concerned with the exercise of the power of review and its limitation by the court. We are concerned with the delay in disposal of the application for review which was kept pending for a span of four years.11. An application for review, regard being had to its limited scope, has to be disposed of as expeditiously as possible. Though we do not intend to fix any time limit, it has to be the duty of the Registry of every High Court to place the matter before the concerned Judge/Bench so that the review application can be dealt with in quite promptitude. If a notice is required to be issued to the opposite party in the application for review, a specific date can be given on which day the matter can be dealt with in accordance with law. A reasonable period can be spent for disposal of the review, but definitely not four years. We are compelled to say so as the learned counsel for the petitioner has submitted that there is a delay of 1700 days in preferring the special leave petition against the principal order as he was prosecuting the remedy of review before the High Court. The situation is not acceptable.12. We are obliged to observe certain aspects. An endeavour has to be made by the High Courts to dispose of the applications for review with expediency. It is the duty and obligation of a litigant to file a review and not to keep it defective as if a defective petition can be allowed to remain on life support, as per his desire. It is the obligation of the counsel filing an application for review to cure or remove the defects at the earliest. The prescription of limitation for filing an application for review has its own sanctity. The Registry of the High Courts has a duty to place the matter before the Judge/Bench with defects so that there can be pre-emptory orders for removal of defects. An adroit method cannot be adopted to file an application for review and wait till its rejection and, thereafter, challenge the orders in the special leave petition and take specious and mercurial plea asserting that delay had occurred because the petitioner was prosecuting the application for review. There may be absence of diligence on the part of the litigant, but the Registry of the High Courts is required to be vigilant. Procrastination of litigation in this manner is nothing but a subterfuge taken recourse to in a manner that can epitomize "cleverness" in its conventional sense. We say no more in this regard. | 0[ds]2. Ordinarily, we would have passed a short order in the matter dismissing the special leave petition which would have paved the path for extinction for the litigation, for it is devoid of any merit warranting any interference but, an eloquent one, the circumstances impel us to state something more.We are really not concerned with the entertaining of an application for review with some delay, but what is perplexing is that the review petition preferred in 2012, was kept pending for almost four years and, thereafter, the High Court has dismissed the same by observing that an effort has been made to seek review of the main judgment as if the High Court was expected to exercise appellate jurisdiction while dealing with an application for review.The aforesaid authorities clearly spell out the nature, scope and ambit of power to be exercised. The error has to be self-evident and is not to be found out by a process of reasoning. We have adverted to the aforesaid aspects only to highlight the nature of review proceedings.10. In the case at hand, be it clearly stated, we are really not concerned with the exercise of the power of review and its limitation by the court. We are concerned with the delay in disposal of the application for review which was kept pending for a span of four years.11. An application for review, regard being had to its limited scope, has to be disposed of as expeditiously as possible. Though we do not intend to fix any time limit, it has to be the duty of the Registry of every High Court to place the matter before the concerned Judge/Bench so that the review application can be dealt with in quite promptitude. If a notice is required to be issued to the opposite party in the application for review, a specific date can be given on which day the matter can be dealt with in accordance with law. A reasonable period can be spent for disposal of the review, but definitely not four years. We are compelled to say so as the learned counsel for the petitioner has submitted that there is a delay of 1700 days in preferring the special leave petition against the principal order as he was prosecuting the remedy of review before the High Court. The situation is not acceptable.12. We are obliged to observe certain aspects. An endeavour has to be made by the High Courts to dispose of the applications for review with expediency. It is the duty and obligation of a litigant to file a review and not to keep it defective as if a defective petition can be allowed to remain on life support, as per his desire. It is the obligation of the counsel filing an application for review to cure or remove the defects at the earliest. The prescription of limitation for filing an application for review has its own sanctity. The Registry of the High Courts has a duty to place the matter before the Judge/Bench with defects so that there can be pre-emptory orders for removal of defects. An adroit method cannot be adopted to file an application for review and wait till its rejection and, thereafter, challenge the orders in the special leave petition and take specious and mercurial plea asserting that delay had occurred because the petitioner was prosecuting the application for review. There may be absence of diligence on the part of the litigant, but the Registry of the High Courts is required to be vigilant. Procrastination of litigation in this manner is nothing but a subterfuge taken recourse to in a manner that can epitomize "cleverness" in its conventional sense. We say no more in this regard. | 0 | 1,603 | 668 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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which passed the decree or made the order.(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.Explanation.- The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment."6. The grounds enumerated therein are specific. The principles for interference in exercise of review jurisdiction are well settled. The Court passing the order is entitled to review the order, if any of the grounds specified in the aforesaid provision are satisfied.7. In Thungabhadra Industries Ltd. v. Govt. of A.P., AIR 1964 SC 1372 the Court while dealing with the scope of review had opined:-"What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an `error apparent on the face of the record). The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an `error apparent on the face of the record, for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by `error apparent. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error."8. In Parsion Devi v. Sumitri Devi, 1997(4) R.C.R.(Civil) 458 : (1997) 8 SCC 715 , the Court after referring to Thungabhadra Industries Ltd. (supra), Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170 and Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389 , held thus:-"Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise"".9. The aforesaid authorities clearly spell out the nature, scope and ambit of power to be exercised. The error has to be self-evident and is not to be found out by a process of reasoning. We have adverted to the aforesaid aspects only to highlight the nature of review proceedings.10. In the case at hand, be it clearly stated, we are really not concerned with the exercise of the power of review and its limitation by the court. We are concerned with the delay in disposal of the application for review which was kept pending for a span of four years.11. An application for review, regard being had to its limited scope, has to be disposed of as expeditiously as possible. Though we do not intend to fix any time limit, it has to be the duty of the Registry of every High Court to place the matter before the concerned Judge/Bench so that the review application can be dealt with in quite promptitude. If a notice is required to be issued to the opposite party in the application for review, a specific date can be given on which day the matter can be dealt with in accordance with law. A reasonable period can be spent for disposal of the review, but definitely not four years. We are compelled to say so as the learned counsel for the petitioner has submitted that there is a delay of 1700 days in preferring the special leave petition against the principal order as he was prosecuting the remedy of review before the High Court. The situation is not acceptable.12. We are obliged to observe certain aspects. An endeavour has to be made by the High Courts to dispose of the applications for review with expediency. It is the duty and obligation of a litigant to file a review and not to keep it defective as if a defective petition can be allowed to remain on life support, as per his desire. It is the obligation of the counsel filing an application for review to cure or remove the defects at the earliest. The prescription of limitation for filing an application for review has its own sanctity. The Registry of the High Courts has a duty to place the matter before the Judge/Bench with defects so that there can be pre-emptory orders for removal of defects. An adroit method cannot be adopted to file an application for review and wait till its rejection and, thereafter, challenge the orders in the special leave petition and take specious and mercurial plea asserting that delay had occurred because the petitioner was prosecuting the application for review. There may be absence of diligence on the part of the litigant, but the Registry of the High Courts is required to be vigilant. Procrastination of litigation in this manner is nothing but a subterfuge taken recourse to in a manner that can epitomize "cleverness" in its conventional sense. We say no more in this regard.
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2. Ordinarily, we would have passed a short order in the matter dismissing the special leave petition which would have paved the path for extinction for the litigation, for it is devoid of any merit warranting any interference but, an eloquent one, the circumstances impel us to state something more.We are really not concerned with the entertaining of an application for review with some delay, but what is perplexing is that the review petition preferred in 2012, was kept pending for almost four years and, thereafter, the High Court has dismissed the same by observing that an effort has been made to seek review of the main judgment as if the High Court was expected to exercise appellate jurisdiction while dealing with an application for review.The aforesaid authorities clearly spell out the nature, scope and ambit of power to be exercised. The error has to be self-evident and is not to be found out by a process of reasoning. We have adverted to the aforesaid aspects only to highlight the nature of review proceedings.10. In the case at hand, be it clearly stated, we are really not concerned with the exercise of the power of review and its limitation by the court. We are concerned with the delay in disposal of the application for review which was kept pending for a span of four years.11. An application for review, regard being had to its limited scope, has to be disposed of as expeditiously as possible. Though we do not intend to fix any time limit, it has to be the duty of the Registry of every High Court to place the matter before the concerned Judge/Bench so that the review application can be dealt with in quite promptitude. If a notice is required to be issued to the opposite party in the application for review, a specific date can be given on which day the matter can be dealt with in accordance with law. A reasonable period can be spent for disposal of the review, but definitely not four years. We are compelled to say so as the learned counsel for the petitioner has submitted that there is a delay of 1700 days in preferring the special leave petition against the principal order as he was prosecuting the remedy of review before the High Court. The situation is not acceptable.12. We are obliged to observe certain aspects. An endeavour has to be made by the High Courts to dispose of the applications for review with expediency. It is the duty and obligation of a litigant to file a review and not to keep it defective as if a defective petition can be allowed to remain on life support, as per his desire. It is the obligation of the counsel filing an application for review to cure or remove the defects at the earliest. The prescription of limitation for filing an application for review has its own sanctity. The Registry of the High Courts has a duty to place the matter before the Judge/Bench with defects so that there can be pre-emptory orders for removal of defects. An adroit method cannot be adopted to file an application for review and wait till its rejection and, thereafter, challenge the orders in the special leave petition and take specious and mercurial plea asserting that delay had occurred because the petitioner was prosecuting the application for review. There may be absence of diligence on the part of the litigant, but the Registry of the High Courts is required to be vigilant. Procrastination of litigation in this manner is nothing but a subterfuge taken recourse to in a manner that can epitomize "cleverness" in its conventional sense. We say no more in this regard.
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Ganesh Prasad Dube Vs. State Of Bihar And Others | or without substance should not throw it out in limine if a prima facie case for investigation is made out. The High Court can reject a petition in limine if it takes the view that the authorities whose acts were called in question had not acted improperly or if it felt that the petition raised complicated questions of fact for determination which could not be properly adjudicated upon in a proceeding under Article 226 of the Constitution." Similarly in Gyan Chand and Others v. State of Haryana and Others (1970(3) SCC 270, C.A. No. 64 of 1970, decided on August 21, 1970.) where allegations of mala fides have been made and a writ petition was dismissed in limine by the High Court, this Court set aside the order and remanded the matter for a fresh consideration after calling upon the authorities concerned to file a return. 13. The above decisions are of no assistance to the appellant as the orders of remand were passed in those appeals which came to this Court either on a proper certificate issued by the High Court or on special leave granted by this Court. In all those cases there was a proper appeal pending before this court in which merits of the points raised for decision in the appeal were gone into and suitable directions were given therein. 14. If the certificate granted by the High Court, as contended by Dr. Singhvi, is invalid, then the appeal before us is an incompetent appeal and no direction on merits can be given by this Court on such an incompetent appeal. There can be no controversy that if the certificate is not valid, the only course open to this Court will be to dismiss the appeal. Dr. Singhvi urged that the grant of certificate under Article 133(1)(b) in this case is not justified because the method of valuation adopted by the High Court is not correct. In this context Dr. Singhvi relied on the decisions of this Court in Chhitarmal v. M/s. Shah Pannalal Chandulal ((1965) 2 SCR 751.) and Satyanarain Prasad v. State of Bihar ((1970) 2 SCC 275.) regarding the test to be applied for the purpose of granting a certificate under clause (a) or (b) of Article 133(1). Dr. Singhvi also relied on the first of the above references in support of his contention that in the absence of a valid certificate, the appeal is incompetent and it has to be dismissed. 15. Mr. S. T. Desai, learned counsel for the appellant, urged that the High Court has not properly considered the claim made by the appellant for a certificate under Article 132(1) and 133(1)(b) and (c). Article 132(1) has not been considered at all nor has the High Court considered clause (c) of Article 133(1). Even with regard to clause (b), the High Court has given a very halting finding. Therefore, the counsel urged that the High Court maybe required to consider the application for grant of a certificate afresh. 16. It is not necessary at this stage to consider whether correct principles have been applied by the High Court in granting the certificate under Article 133(1)(b). As we have pointed out earlier, it has expressed doubts here and there and it has granted the certificate under that clause on the ground that the Patna High Court has granted certificate under similar circumstances. As the High Court is being required to consider this matter afresh, we do not him it necessary to express any opinion on this aspect. Admittedly the High Court has not considered the question whether the appellant will be entitled to a certificate under Article 132(1) or Article 133(1)(c). It was pointed out to us on behalf of the respondents that the High Court did not consider the grant of a certificate under clause (c) of Article 133(1) as no argument was advanced by the appellant that the case involves a substantial question of law as to the interpretation of the Constitution. No doubt there is such a passing remark in the order of the High Court; but as the matter has to be reconsidered by the High Court, it is desirable that the claim of the appellant under this clause is also considered by the High Court. We have already referred to the fact that even clause (b) has been considered only in a very halting manner by the High Court. Therefore, the position is that the certificate as granted by the High Court is not a valid certificate and as such the appeal must be held to be incompetent. But the matter does not rest there. In cases where the claim for certificate made on other clauses or under other Articles have not been considered at all, this court has directed the High Court to consider the question whether a case has been made out for issue of a certificate under such other provisions. [Vide Satyanarain Prasad v. State of Bihar (supra) and M/s. Shree Krishna Gyanodaya Sugar Ltd., v. The State of Bihar and Others (AIR 1970 SC 2041 ).] 17. As the High Court has not properly considered the application filed by the appellant, that is Supreme Court Appeal No. 42 of 1969, before the High Court for grant of the certificate, the application will be taken up by the High Court afresh. The High Court will consider whether the appellant is able to satisfy the Court that he is eligible to get a certificate under Article 132(1) or under Article 133(1)(b) or (c) of the Constitution. It is not granted under clause (a) of Article 133(1) as that question is already concluded against the appellant in its order, dated March 13, 1969. The High Court in the fresh order to be passed must clearly indicate under what particular Article or clauses of the Article, the certificate is granted. We are constrained to make this remark because in the present order the High Court has merely stated that the certificate is used under Article 133(1). | 0[ds]Though the concluding part of the order granting the certificate states that it has been granted under Article 133(1), in the circumstances mentioned above, it is clear that the certificate has been granted only under article 133(1)(b). This is on the ground that the appellant claimed his right to the office of the Director, public Instruction, which would have brought him the emoluments referred to by him for a period of 3 years and three months, if the impugned order had not been passed. This method of valuation for the purpose of clause (b) is not correct12. We are not inclined to agree with Mr. Desai that if the certificate granted by the High Court is not valid, in this Court can proceed to hear the appeal on merits. Mr. Desai relied on the decision of this Court reported in Century Spinning and manufacturing Company Ltd., and Another v. Ulhasnagar Municipal Council and Another (1970 (1) SCC 582.) in support of his contention that the High Court was not justified in dismissing the writ petition summarily. It is no doubt true that in the above decision it has been held that though the High Court has a discretion to decline to exercise its extraordinary jurisdiction under Article 226, nevertheless, the discretion is to be judicially exercised and if the petitioner makes a claim which is frivolous, vexatious or prima facie unjust, the High Court may decline to entertain the petition. But if a party claims to be aggrieved by the unlawful, arbitrary or unjust order of a public body or authority, he is entitled to a hearing of his petition on merits and the High Court will not be justified in dismissing such a petition on limine14. If the certificate granted by the High Court, as contended by Dr. Singhvi, is invalid, then the appeal before us is an incompetent appeal and no direction on merits can be given by this Court on such an incompetent appeal. There can be no controversy that if the certificate is not valid, the only course open to this Court will be to dismiss the appeal. Dr. Singhvi urged that the grant of certificate under Article 133(1)(b) in this case is not justified because the method of valuation adopted by the High Court is not correct16. It is not necessary at this stage to consider whether correct principles have been applied by the High Court in granting the certificate under Article 133(1)(b). As we have pointed out earlier, it has expressed doubts here and there and it has granted the certificate under that clause on the ground that the Patna High Court has granted certificate under similar circumstances. As the High Court is being required to consider this matter afresh, we do not him it necessary to express any opinion on this aspect. Admittedly the High Court has not considered the question whether the appellant will be entitled to a certificate under Article 132(1) or Article 133(1)(c). It was pointed out to us on behalf of the respondents that the High Court did not consider the grant of a certificate under clause (c) of Article 133(1) as no argument was advanced by the appellant that the case involves a substantial question of law as to the interpretation of the Constitution. No doubt there is such a passing remark in the order of the High Court; but as the matter has to be reconsidered by the High Court, it is desirable that the claim of the appellant under this clause is also considered by the High Court. We have already referred to the fact that even clause (b) has been considered only in a very halting manner by the High Court. Therefore, the position is that the certificate as granted by the High Court is not a valid certificate and as such the appeal must be held to be incompetent. But the matter does not rest there. In cases where the claim for certificate made on other clauses or under other Articles have not been considered at all, this court has directed the High Court to consider the question whether a case has been made out for issue of a certificate under such other provisions17. As the High Court has not properly considered the application filed by the appellant, that is Supreme Court Appeal No. 42 of 1969, before the High Court for grant of the certificate, the application will be taken up by the High Court afresh. The High Court will consider whether the appellant is able to satisfy the Court that he is eligible to get a certificate under Article 132(1) or under Article 133(1)(b) or (c) of the Constitution. It is not granted under clause (a) of Article 133(1) as that question is already concluded against the appellant in its order, dated March 13, 1969. The High Court in the fresh order to be passed must clearly indicate under what particular Article or clauses of the Article, the certificate is granted. We are constrained to make this remark because in the present order the High Court has merely stated that the certificate is used under Article 133(1). | 0 | 3,419 | 977 | ### 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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or without substance should not throw it out in limine if a prima facie case for investigation is made out. The High Court can reject a petition in limine if it takes the view that the authorities whose acts were called in question had not acted improperly or if it felt that the petition raised complicated questions of fact for determination which could not be properly adjudicated upon in a proceeding under Article 226 of the Constitution." Similarly in Gyan Chand and Others v. State of Haryana and Others (1970(3) SCC 270, C.A. No. 64 of 1970, decided on August 21, 1970.) where allegations of mala fides have been made and a writ petition was dismissed in limine by the High Court, this Court set aside the order and remanded the matter for a fresh consideration after calling upon the authorities concerned to file a return. 13. The above decisions are of no assistance to the appellant as the orders of remand were passed in those appeals which came to this Court either on a proper certificate issued by the High Court or on special leave granted by this Court. In all those cases there was a proper appeal pending before this court in which merits of the points raised for decision in the appeal were gone into and suitable directions were given therein. 14. If the certificate granted by the High Court, as contended by Dr. Singhvi, is invalid, then the appeal before us is an incompetent appeal and no direction on merits can be given by this Court on such an incompetent appeal. There can be no controversy that if the certificate is not valid, the only course open to this Court will be to dismiss the appeal. Dr. Singhvi urged that the grant of certificate under Article 133(1)(b) in this case is not justified because the method of valuation adopted by the High Court is not correct. In this context Dr. Singhvi relied on the decisions of this Court in Chhitarmal v. M/s. Shah Pannalal Chandulal ((1965) 2 SCR 751.) and Satyanarain Prasad v. State of Bihar ((1970) 2 SCC 275.) regarding the test to be applied for the purpose of granting a certificate under clause (a) or (b) of Article 133(1). Dr. Singhvi also relied on the first of the above references in support of his contention that in the absence of a valid certificate, the appeal is incompetent and it has to be dismissed. 15. Mr. S. T. Desai, learned counsel for the appellant, urged that the High Court has not properly considered the claim made by the appellant for a certificate under Article 132(1) and 133(1)(b) and (c). Article 132(1) has not been considered at all nor has the High Court considered clause (c) of Article 133(1). Even with regard to clause (b), the High Court has given a very halting finding. Therefore, the counsel urged that the High Court maybe required to consider the application for grant of a certificate afresh. 16. It is not necessary at this stage to consider whether correct principles have been applied by the High Court in granting the certificate under Article 133(1)(b). As we have pointed out earlier, it has expressed doubts here and there and it has granted the certificate under that clause on the ground that the Patna High Court has granted certificate under similar circumstances. As the High Court is being required to consider this matter afresh, we do not him it necessary to express any opinion on this aspect. Admittedly the High Court has not considered the question whether the appellant will be entitled to a certificate under Article 132(1) or Article 133(1)(c). It was pointed out to us on behalf of the respondents that the High Court did not consider the grant of a certificate under clause (c) of Article 133(1) as no argument was advanced by the appellant that the case involves a substantial question of law as to the interpretation of the Constitution. No doubt there is such a passing remark in the order of the High Court; but as the matter has to be reconsidered by the High Court, it is desirable that the claim of the appellant under this clause is also considered by the High Court. We have already referred to the fact that even clause (b) has been considered only in a very halting manner by the High Court. Therefore, the position is that the certificate as granted by the High Court is not a valid certificate and as such the appeal must be held to be incompetent. But the matter does not rest there. In cases where the claim for certificate made on other clauses or under other Articles have not been considered at all, this court has directed the High Court to consider the question whether a case has been made out for issue of a certificate under such other provisions. [Vide Satyanarain Prasad v. State of Bihar (supra) and M/s. Shree Krishna Gyanodaya Sugar Ltd., v. The State of Bihar and Others (AIR 1970 SC 2041 ).] 17. As the High Court has not properly considered the application filed by the appellant, that is Supreme Court Appeal No. 42 of 1969, before the High Court for grant of the certificate, the application will be taken up by the High Court afresh. The High Court will consider whether the appellant is able to satisfy the Court that he is eligible to get a certificate under Article 132(1) or under Article 133(1)(b) or (c) of the Constitution. It is not granted under clause (a) of Article 133(1) as that question is already concluded against the appellant in its order, dated March 13, 1969. The High Court in the fresh order to be passed must clearly indicate under what particular Article or clauses of the Article, the certificate is granted. We are constrained to make this remark because in the present order the High Court has merely stated that the certificate is used under Article 133(1).
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Though the concluding part of the order granting the certificate states that it has been granted under Article 133(1), in the circumstances mentioned above, it is clear that the certificate has been granted only under article 133(1)(b). This is on the ground that the appellant claimed his right to the office of the Director, public Instruction, which would have brought him the emoluments referred to by him for a period of 3 years and three months, if the impugned order had not been passed. This method of valuation for the purpose of clause (b) is not correct12. We are not inclined to agree with Mr. Desai that if the certificate granted by the High Court is not valid, in this Court can proceed to hear the appeal on merits. Mr. Desai relied on the decision of this Court reported in Century Spinning and manufacturing Company Ltd., and Another v. Ulhasnagar Municipal Council and Another (1970 (1) SCC 582.) in support of his contention that the High Court was not justified in dismissing the writ petition summarily. It is no doubt true that in the above decision it has been held that though the High Court has a discretion to decline to exercise its extraordinary jurisdiction under Article 226, nevertheless, the discretion is to be judicially exercised and if the petitioner makes a claim which is frivolous, vexatious or prima facie unjust, the High Court may decline to entertain the petition. But if a party claims to be aggrieved by the unlawful, arbitrary or unjust order of a public body or authority, he is entitled to a hearing of his petition on merits and the High Court will not be justified in dismissing such a petition on limine14. If the certificate granted by the High Court, as contended by Dr. Singhvi, is invalid, then the appeal before us is an incompetent appeal and no direction on merits can be given by this Court on such an incompetent appeal. There can be no controversy that if the certificate is not valid, the only course open to this Court will be to dismiss the appeal. Dr. Singhvi urged that the grant of certificate under Article 133(1)(b) in this case is not justified because the method of valuation adopted by the High Court is not correct16. It is not necessary at this stage to consider whether correct principles have been applied by the High Court in granting the certificate under Article 133(1)(b). As we have pointed out earlier, it has expressed doubts here and there and it has granted the certificate under that clause on the ground that the Patna High Court has granted certificate under similar circumstances. As the High Court is being required to consider this matter afresh, we do not him it necessary to express any opinion on this aspect. Admittedly the High Court has not considered the question whether the appellant will be entitled to a certificate under Article 132(1) or Article 133(1)(c). It was pointed out to us on behalf of the respondents that the High Court did not consider the grant of a certificate under clause (c) of Article 133(1) as no argument was advanced by the appellant that the case involves a substantial question of law as to the interpretation of the Constitution. No doubt there is such a passing remark in the order of the High Court; but as the matter has to be reconsidered by the High Court, it is desirable that the claim of the appellant under this clause is also considered by the High Court. We have already referred to the fact that even clause (b) has been considered only in a very halting manner by the High Court. Therefore, the position is that the certificate as granted by the High Court is not a valid certificate and as such the appeal must be held to be incompetent. But the matter does not rest there. In cases where the claim for certificate made on other clauses or under other Articles have not been considered at all, this court has directed the High Court to consider the question whether a case has been made out for issue of a certificate under such other provisions17. As the High Court has not properly considered the application filed by the appellant, that is Supreme Court Appeal No. 42 of 1969, before the High Court for grant of the certificate, the application will be taken up by the High Court afresh. The High Court will consider whether the appellant is able to satisfy the Court that he is eligible to get a certificate under Article 132(1) or under Article 133(1)(b) or (c) of the Constitution. It is not granted under clause (a) of Article 133(1) as that question is already concluded against the appellant in its order, dated March 13, 1969. The High Court in the fresh order to be passed must clearly indicate under what particular Article or clauses of the Article, the certificate is granted. We are constrained to make this remark because in the present order the High Court has merely stated that the certificate is used under Article 133(1).
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The State Of Bihar Vs. Abdul Majid | of India Act. 1935, confer legislative powers on the different legislatures in the country. Item 4 of the concurrent list in the Seventh Schedule reads thus:"Civil Procedure and all matters included in the Code of Civil Procedure, at the date of the passing of this Act." It is clear therefore that the Indian Legislatures were conferred by the Government of India Act, 1935, power to regulate the procedure in regard to actions against the Grown and to make provision for reliefs that could be granted in such actions. These provisions of the Government of India Act, 1935, stand by themselves independently of what is contained in section 240, and therefore no question arises that section 60 of the Code of Civil Procedure which has the sanction of the Government of India Act, 1935, itself is in status lower than the rule laid down in section 240. 11. The rules of English law that the Grown cannot be sued by a civil servant for money or salary or for compensation has its origin in the feudal theory that the Crown cannot be sued by its vassals or subjects in its801 own courts. From this theory the common law lawyers in England deduced two rules, namely, (1) that the King can do no wrong, and (2) that as a matter of procedure no action can lie in the Kings courts against the Crown. (See Ridges Constitutional Law, eighth edition, page 295, and Frasers Constitutional Law, page 164). The subject, in this situation, could only proceed by way of a petition of right which required the previous permission of the Crown. Permission was given by a fiat justitia issued by the Crown. It was not in practice refused to a petitioner who had any shadow of a claim, so that probably the disadvantages of this form of procedure were more theoretical that substantial. Petitions of right and various other special forms of English procedure applicable exclusively to actions by and against the Crown were abolished by the Crown Proceedings Act, 1947, which provides that in future claims against the Crown might be enforced as of right and without the fiat of His Majesty, and that they should be enforceable by ordinary procedure in accordance with the rules of the High Court or the County Court as the case might be. Arrears of salary were being actually recovered by the procedure of petition of right in England. [See Bush v. R. ([1869] Times News, May 29.)]There the judgment resulted in favour of the suppliant. The claim was in respect of the amount of salary due to him as Master of the Court of Queens Bench in Ireland. (Robertsons Civil Proceedings by or against the Crown, page 338).In India, from the earliest times, the mode of procedure to proceed against the Crown has been laid down in the Code of Civil Procedure and the procedure of petition of right was never adopted in this country, and the same seems to have been the rule in Australia and other Colonies. Section 56 of the Judiciary Act, 1903, relating to the Commonwealth of Australia provides:"Any person making any claim against the Commonwealth, whether in contract or in tort, may respect of the claim bring a suit against the Commonwealth in the High Court or in the Supreme Court of the State in which the claim arose." 12. Under the New South Wales Act, 39 Vict. No. 38, the Government of the Colony is liable to be sued in an action of tort as well as in contract. Section 65 of the Government of India Act, 1858, conferred the right of suit against the Government. It provided that "all persons and bodies politic shall and may have and take the same suits, remedies and proceedings legal and equitable, against the Secretary of State in Council of India as they could have done against the said company" (the East India Company). This was replaced by section 32 of the Government of India Act, 1915. Sub-section (2) of that section ran as follows :--"Every person shall have the same remedies against the Secretary of State in Council as he might have had against the East India Company if the Government of India Act, 1858, and this Act had not been passed." 13. This was replaced by section 176(1)of the Government of India Act, 1935, which substantially reproduced these provisions. From these provisions it is clear that the Crown in India was liable to be sued in respect of acts, which in England could be enforced only by a petition of right. As regards torts of its servants in exercise of sovereign powers, the company was not, and the Crown in India was not, liable unless the act had been ordered or ratified by it. Be that as it may, that rule has no application to the case of arrears of salary earned by a public servant for the period that he was actually in office. The present claim is not based on tort but is based on quantum meruit or contract and the court is entitled to give relief to him. The Code of Civil Procedure from 1859 right up to 1908 has prescribed the procedure for all kinds of suits and section 60 and the provision of Order XXI substantially stand the same as they were in 1859 and those provisions have received recognition in all the Government of India Acts that have been passed since the year 1858. The salary of its civil servants in the hands of the Crown has been made subject to the writ of civil court. It can be seized in execution of a decree attached. It is thus difficult to see on what grounds the claim that the Crown cannot be sued for arrears of salary directly by the civil servant, though his creditor can take it, can be based or substained. What could be claimed in England by a petition of right can be claimed in this country by ordinary process. 14. | 0[ds]The respondent here was dismissed by the Deputy Inspector-General of Police, though he was appointed by the Inspector-General of Police. This was clearly contrary to the provisions of section 240 (3) ofthe Government of India Act,1935,which provides that no person shall be dismissed from the service of His Majesty by an authority subordinate to that by which he was appointed. But nevertheless the appeal-preferred by him to the Inspector-General of Police was rejected and his petition to the Government of the State met with the same fate, so that he was never reinstated by the order of any revising or appellate authority. It was only after the present suit was filed that the Government reinstated him. This was no proceeding in revision or appeal. In these circumstances the enabling provisions of rule 95 had no application whatsoever to the case of the plaintiff. What happened subsequently is a matter wholly outside the contemplation of the ruleIn the proviso to section 60 clause (i) the word salary is used as applicable to private employees and to Government servants also. The word salary in respect of a private employee must mean an enforceable right to receive the periodical payments mentioned in the explanation. In that connection it is not used in the sense of a bounty. It will therefore be improper to give the same word, when used with regard to a civil servant under the Crown a different meaning in the same clause. It seems to me therefore that the Imperial Parliament has not accepted the principle that the Crown is not liable to pay its servant salary for the period he was in service, as applicable to British India or as forming part of the doctrine that service under the Crown is at His Majestys pleasureWe are therefore of the opinion that the rule laid down by their Lordships of the Privy Council in1. M. Lalls case(75 I.A. 225.), without a consideration of the provisions of theCode of Civil Procedurerelevant to the inquiry and without a consideration of the reasoning of the Federal Court in Tara Chand Pandits case(2), cannot be treated, particularly because the matter was not directly involved in the suit, as the final word on the subject. We are in no way bound by the decision given either in Tara Chand Pandits case(2 ), or by the decision given by the Privy Council in I. M. Lalls case (75 I.A. 225.) But on a consideration of the reasons given in the two judgments we think that the rule of English law that a, civil servant cannot maintain a suit against the State or against the Crown for the recovery of arrears of salary does not prevail in this country and that it has been negatived by the provisions of the statute law in IndiaIn our judgment, these suggestions are based on a misconception of the scope of this expression. The expression concerns itself with the tenure of office of the civil servant and it is not implicit in it that a civil servant serves the Crown ex grati or that his salary is in the nature of a bounty. It has again no relation or connection with the question whether an action can be filed to recover arrears of salary against the Crown. The origin of the two rules is different and they operate on two different fieldsThe rule that a civil servant holds office at the pleasure of the Crown has its origin in the latin phrase" durante bene placito" ("during pleasure") meaning that the tenure of office of a civil servant, except where it is otherwise provided by statute, can be terminated at any time without cause assigned. The true scope and effect of this expression is that even if a special contract has been made with the civil servant the Crown is not bound thereby. In other words, civil servants are liable to dismissal without notice and there is no right of action for wrongful dismissal, that is, that they cannot claim damages for premature termination of their servicesThe present claim is not based on tort but is based on quantum meruit or contract and the court is entitled to give relief to him. TheCode of Civil Procedurefrom 1859 right up to 1908 has prescribed the procedure for all kinds of suits and section 60 and the provision of Order XXI substantially stand the same as they were in 1859 and those provisions have received recognition in all the Government of India Acts that have been passed since the year 1858. The salary of its civil servants in the hands of the Crown has been made subject to the writ of civil court. It can be seized in execution of a decree attached. It is thus difficult to see on what grounds the claim that the Crown cannot be sued for arrears of salary directly by the civil servant, though his creditor can take it, can be based or substained. What could be claimed in England by a petition of right can be claimed in this country by ordinary processThis rule of English law has not been fully adopted in section 240. Section 240 itself places restrictions and limitations on the exercise of that pleasure and those restrictions must be given effect to. They are imperative and mandatory. It follows therefore that whenever there is a breach of restrictions imposed by the statute by the Government or the Crown the matter is justiciable and the party aggrieved is entitled to suitable relief at the hands of the court. As pointed out earlier in this judgment, there is no warrant for the proposition that the relief must be limited to the declaration and cannot go beyond it. To the extent that the rule that Government servants hold office during pleasure has been departed from by the statute, the Government servants are entitled to relief like any other person under the ordinary law, and that relief therefore must be regulated by theCode of Civiln 292 of theGovernment of India Act,1935,provides that the law in force in British India immediately before the commencement of the Act shall continue in force until altered, repealed or amended by a competent legislature. Sections 100 to 104 of the Government of India Act.1935,confer legislative powers on the different legislatures in the countryIt is clear therefore that the Indian Legislatures were conferred bythe Government of IndiaAct,1935,power to regulate the procedure in regard to actions against the Grown and to make provision for reliefs that could be granted in such actions. These provisions ofthe Government of IndiaAct,1935,stand by themselves independently of what is contained in section 240, and therefore no question arises that section 60 of theCode of CivilProcedurewhich has the sanction ofthe Government of IndiaAct,1935,itself is in status lower than the rule laid down in section 240. | 0 | 6,340 | 1,233 | ### 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:
of India Act. 1935, confer legislative powers on the different legislatures in the country. Item 4 of the concurrent list in the Seventh Schedule reads thus:"Civil Procedure and all matters included in the Code of Civil Procedure, at the date of the passing of this Act." It is clear therefore that the Indian Legislatures were conferred by the Government of India Act, 1935, power to regulate the procedure in regard to actions against the Grown and to make provision for reliefs that could be granted in such actions. These provisions of the Government of India Act, 1935, stand by themselves independently of what is contained in section 240, and therefore no question arises that section 60 of the Code of Civil Procedure which has the sanction of the Government of India Act, 1935, itself is in status lower than the rule laid down in section 240. 11. The rules of English law that the Grown cannot be sued by a civil servant for money or salary or for compensation has its origin in the feudal theory that the Crown cannot be sued by its vassals or subjects in its801 own courts. From this theory the common law lawyers in England deduced two rules, namely, (1) that the King can do no wrong, and (2) that as a matter of procedure no action can lie in the Kings courts against the Crown. (See Ridges Constitutional Law, eighth edition, page 295, and Frasers Constitutional Law, page 164). The subject, in this situation, could only proceed by way of a petition of right which required the previous permission of the Crown. Permission was given by a fiat justitia issued by the Crown. It was not in practice refused to a petitioner who had any shadow of a claim, so that probably the disadvantages of this form of procedure were more theoretical that substantial. Petitions of right and various other special forms of English procedure applicable exclusively to actions by and against the Crown were abolished by the Crown Proceedings Act, 1947, which provides that in future claims against the Crown might be enforced as of right and without the fiat of His Majesty, and that they should be enforceable by ordinary procedure in accordance with the rules of the High Court or the County Court as the case might be. Arrears of salary were being actually recovered by the procedure of petition of right in England. [See Bush v. R. ([1869] Times News, May 29.)]There the judgment resulted in favour of the suppliant. The claim was in respect of the amount of salary due to him as Master of the Court of Queens Bench in Ireland. (Robertsons Civil Proceedings by or against the Crown, page 338).In India, from the earliest times, the mode of procedure to proceed against the Crown has been laid down in the Code of Civil Procedure and the procedure of petition of right was never adopted in this country, and the same seems to have been the rule in Australia and other Colonies. Section 56 of the Judiciary Act, 1903, relating to the Commonwealth of Australia provides:"Any person making any claim against the Commonwealth, whether in contract or in tort, may respect of the claim bring a suit against the Commonwealth in the High Court or in the Supreme Court of the State in which the claim arose." 12. Under the New South Wales Act, 39 Vict. No. 38, the Government of the Colony is liable to be sued in an action of tort as well as in contract. Section 65 of the Government of India Act, 1858, conferred the right of suit against the Government. It provided that "all persons and bodies politic shall and may have and take the same suits, remedies and proceedings legal and equitable, against the Secretary of State in Council of India as they could have done against the said company" (the East India Company). This was replaced by section 32 of the Government of India Act, 1915. Sub-section (2) of that section ran as follows :--"Every person shall have the same remedies against the Secretary of State in Council as he might have had against the East India Company if the Government of India Act, 1858, and this Act had not been passed." 13. This was replaced by section 176(1)of the Government of India Act, 1935, which substantially reproduced these provisions. From these provisions it is clear that the Crown in India was liable to be sued in respect of acts, which in England could be enforced only by a petition of right. As regards torts of its servants in exercise of sovereign powers, the company was not, and the Crown in India was not, liable unless the act had been ordered or ratified by it. Be that as it may, that rule has no application to the case of arrears of salary earned by a public servant for the period that he was actually in office. The present claim is not based on tort but is based on quantum meruit or contract and the court is entitled to give relief to him. The Code of Civil Procedure from 1859 right up to 1908 has prescribed the procedure for all kinds of suits and section 60 and the provision of Order XXI substantially stand the same as they were in 1859 and those provisions have received recognition in all the Government of India Acts that have been passed since the year 1858. The salary of its civil servants in the hands of the Crown has been made subject to the writ of civil court. It can be seized in execution of a decree attached. It is thus difficult to see on what grounds the claim that the Crown cannot be sued for arrears of salary directly by the civil servant, though his creditor can take it, can be based or substained. What could be claimed in England by a petition of right can be claimed in this country by ordinary process. 14.
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### Explanation:
application whatsoever to the case of the plaintiff. What happened subsequently is a matter wholly outside the contemplation of the ruleIn the proviso to section 60 clause (i) the word salary is used as applicable to private employees and to Government servants also. The word salary in respect of a private employee must mean an enforceable right to receive the periodical payments mentioned in the explanation. In that connection it is not used in the sense of a bounty. It will therefore be improper to give the same word, when used with regard to a civil servant under the Crown a different meaning in the same clause. It seems to me therefore that the Imperial Parliament has not accepted the principle that the Crown is not liable to pay its servant salary for the period he was in service, as applicable to British India or as forming part of the doctrine that service under the Crown is at His Majestys pleasureWe are therefore of the opinion that the rule laid down by their Lordships of the Privy Council in1. M. Lalls case(75 I.A. 225.), without a consideration of the provisions of theCode of Civil Procedurerelevant to the inquiry and without a consideration of the reasoning of the Federal Court in Tara Chand Pandits case(2), cannot be treated, particularly because the matter was not directly involved in the suit, as the final word on the subject. We are in no way bound by the decision given either in Tara Chand Pandits case(2 ), or by the decision given by the Privy Council in I. M. Lalls case (75 I.A. 225.) But on a consideration of the reasons given in the two judgments we think that the rule of English law that a, civil servant cannot maintain a suit against the State or against the Crown for the recovery of arrears of salary does not prevail in this country and that it has been negatived by the provisions of the statute law in IndiaIn our judgment, these suggestions are based on a misconception of the scope of this expression. The expression concerns itself with the tenure of office of the civil servant and it is not implicit in it that a civil servant serves the Crown ex grati or that his salary is in the nature of a bounty. It has again no relation or connection with the question whether an action can be filed to recover arrears of salary against the Crown. The origin of the two rules is different and they operate on two different fieldsThe rule that a civil servant holds office at the pleasure of the Crown has its origin in the latin phrase" durante bene placito" ("during pleasure") meaning that the tenure of office of a civil servant, except where it is otherwise provided by statute, can be terminated at any time without cause assigned. The true scope and effect of this expression is that even if a special contract has been made with the civil servant the Crown is not bound thereby. In other words, civil servants are liable to dismissal without notice and there is no right of action for wrongful dismissal, that is, that they cannot claim damages for premature termination of their servicesThe present claim is not based on tort but is based on quantum meruit or contract and the court is entitled to give relief to him. TheCode of Civil Procedurefrom 1859 right up to 1908 has prescribed the procedure for all kinds of suits and section 60 and the provision of Order XXI substantially stand the same as they were in 1859 and those provisions have received recognition in all the Government of India Acts that have been passed since the year 1858. The salary of its civil servants in the hands of the Crown has been made subject to the writ of civil court. It can be seized in execution of a decree attached. It is thus difficult to see on what grounds the claim that the Crown cannot be sued for arrears of salary directly by the civil servant, though his creditor can take it, can be based or substained. What could be claimed in England by a petition of right can be claimed in this country by ordinary processThis rule of English law has not been fully adopted in section 240. Section 240 itself places restrictions and limitations on the exercise of that pleasure and those restrictions must be given effect to. They are imperative and mandatory. It follows therefore that whenever there is a breach of restrictions imposed by the statute by the Government or the Crown the matter is justiciable and the party aggrieved is entitled to suitable relief at the hands of the court. As pointed out earlier in this judgment, there is no warrant for the proposition that the relief must be limited to the declaration and cannot go beyond it. To the extent that the rule that Government servants hold office during pleasure has been departed from by the statute, the Government servants are entitled to relief like any other person under the ordinary law, and that relief therefore must be regulated by theCode of Civiln 292 of theGovernment of India Act,1935,provides that the law in force in British India immediately before the commencement of the Act shall continue in force until altered, repealed or amended by a competent legislature. Sections 100 to 104 of the Government of India Act.1935,confer legislative powers on the different legislatures in the countryIt is clear therefore that the Indian Legislatures were conferred bythe Government of IndiaAct,1935,power to regulate the procedure in regard to actions against the Grown and to make provision for reliefs that could be granted in such actions. These provisions ofthe Government of IndiaAct,1935,stand by themselves independently of what is contained in section 240, and therefore no question arises that section 60 of theCode of CivilProcedurewhich has the sanction ofthe Government of IndiaAct,1935,itself is in status lower than the rule laid down in section 240.
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East India Commercial Company Private Limited V. Corporation Of Calcutta Vs. | Municipal Act is different from the M.P. Municipal Act, 1956. Section 168 of the Municipal Act is similar to the corresponding provisions in Delhi and in Andhra Pradesh and therefore it is the ratio of the decisions in the case of Padma Debi, Dewan Daulat Rai and Guntur Municipal Council which should apply. 16. There is one more decision to which reference need be made, i.e., the case of Asstt. G.M., Central Bank of India v. Commr., Municipal Corpn. for the City of Ahmedabad. Here again the question arose with regard to the determination of the annual letting value of the property. It was contended that the principles of Dewan Daulat Rai case should be followed but this contention was repelled in view of the fact that the Municipal Corporation Act applicable in Ahmedabad after its amendment itself defined what the annual letting value was to be. This provision also contained a non obstante clause similar to one which was in the M.P. Municipal Corporation Act and as a reason thereof, the rateable value was determined according to the principles contained in the Municipal Corporation Act and not as per the fair rent or the standard rent determinable under the Rent Restriction Act. 17. From the aforesaid decisions, the principle which is deducible is that when the Municipal Act requires the determination of the annual value, that Act has to be read along with Rent Restriction Act which provides for the determination of fair rent or standard rent. Reading the two Acts together the rateable value cannot be more than the fair or standard rent which can be fixed under the Rent Control Act. The exception to this rule is that whenever a any Municipal Act itself provides the mode of determination of the annual letting value like the Central Bank of India case relating to Ahmedabad or contains a non obstante clause as in Ratnaprabha case then the determination of the annual letting value has to be according to the terms of the Municipal Act. In the present case, Section 168 of the Municipal Act does not contain any non obstante clause so as to make the Tenancy Act inapplicable and nor does the Act itself provide the method or basis for determining the annual value. This Act has, therefore, to be read along with Tenancy Act of 1956 and it is the fair rent determinable under Section 8(1)(a) which alone can be the annual value for the purpose of property tax. 18. For the aforesaid reasons, we are of the view that the decision of the Calcutta High Court, under appeal, cannot be sustained. The annual value under Section 168 of the Municipal Act has to be fixed on the basis of fair rent determinable under Section 8 of the Tenancy Act. 19. We, however, find that the proviso to Section 8(1)(a) of the Tenancy Act has not been considered so far in dealing with the question with regard to the fixation of the annual value. The decisions of this Court referred to hereinabove clearly bring out that the annual value cannot be more than the "fair rent" or "standard rent" (whatever may be the nomenclature in the relevant law of the State) which is determinable under the Rent Restriction Act. The proviso to Section 8(1)(a) of the Tenancy Act regards the contractual rent for a period of 8 years when the premises was first let out to be the "fair rent". When, therefore, the rateable value or the annual value for the purpose of determining the municipal tax has to be the "fair rent" determinable under the Tenancy Act then, because of the proviso, it is the agreed rent for a period of eight years which is the "fair rent" and has to be taken into consideration in determining the property tax. Because of the proviso the annual value of the building for the period of eight years from the first letting has to be fixed on the basis of contractual rent and thereafter the annual value will have to be revised and fixed as per the formula contained in Section 8(1)(a) of the Tenancy Act namely 6 3/4 per cent per annum on the aggregate amount of the actual cost of construction and the market price of the land on the date of commencement of construction as provided in that provision. To put it differently, it is only the "fair rent" which can be taken into consideration for the purpose of fixing the annual value under the Municipal Act. Because of the fiction created by the proviso to Section 8(1)(d) of the Tenancy Act, the contractual rent is regarded as the "fair rent" for a period of eight years from the date the premises was first let out. It is for that reason that this figure of "fair rent" will be the annual value which will have to be revised after eight years when the proviso will no longer be applicable and the "fair rent" will have to be determined on the basis of the formula contained in the said provision. 20. In the present case, it is not known as to when the property was first let out and when does the period of eight years come to an end. It is no doubt true that in special leave petition, it has been stated that the premises were constructed after 1964 and they were let out only in 1966 but the assessing authority has not examined the question by taking into consideration the effect of the proviso to Section 8(1)(a) of the Tenancy Act. It would, therefore, be necessary to determine as to when the property was first let out so that for a period of eight years during the subsistence of tenancy, the contractual rent being the "fair rent" will be regarded as the basis for fixing the annual value under Section 168 of the Municipal Act. Thereafter the annual value has to be determined in accordance with Section 8(1)(a) of the Tenancy Act. | 1[ds]14. The principle, namely, that the annual value for the purpose of the Municipal Act could not be in excess of the standard rent even if the landlord was entitled to receive the contractual rent in respect of a building to which the rent restriction law applies has been elaborately discussed in Dewan Daulat Rai case. It was sought to be contended on behalf of the New Delhi Municipal Committee that till the fixation of the standard rent, the landlord could legally receive the contractual rent, more so when the tenants right to get the standard rent had come to an end with a limitation for moving such an application having expired, therefore, the annual value should be the actual rent which was legally received by the landlord. Rejecting this contention, this Court applied and followed the decision in Padma Debi case and also the decision in Corpn. of Calcutta v. LIC of India where Padma Debi case and Guntur Municipal Council case had been followed18. For the aforesaid reasons, we are of the view that the decision of the Calcutta High Court, under appeal, cannot be sustained. The annual value under Section 168 of the Municipal Act has to be fixed on the basis of fair rent determinable under Section 8 of the Tenancy Act19. We, however, find that the proviso to Section 8(1)(a) of the Tenancy Act has not been considered so far in dealing with the question with regard to the fixation of the annual value. The decisions of this Court referred to hereinabove clearly bring out that the annual value cannot be more than the "fair rent" or "standard rent" (whatever may be the nomenclature in the relevant law of the State) which is determinable under the Rent Restriction Act. The proviso to Section 8(1)(a) of the Tenancy Act regards the contractual rent for a period of 8 years when the premises was first let out to be the "fair rent". When, therefore, the rateable value or the annual value for the purpose of determining the municipal tax has to be the "fair rent" determinable under the Tenancy Act then, because of the proviso, it is the agreed rent for a period of eight years which is the "fair rent" and has to be taken into consideration in determining the property tax. Because of the proviso the annual value of the building for the period of eight years from the first letting has to be fixed on the basis of contractual rent and thereafter the annual value will have to be revised and fixed as per the formula contained in Section 8(1)(a) of the Tenancy Act namely 6 3/4 per cent per annum on the aggregate amount of the actual cost of construction and the market price of the land on the date of commencement of construction as provided in that provision. To put it differently, it is only the "fair rent" which can be taken into consideration for the purpose of fixing the annual value under the Municipal Act. Because of the fiction created by the proviso to Section 8(1)(d) of the Tenancy Act, the contractual rent is regarded as the "fair rent" for a period of eight years from the date the premises was first let out. It is for that reason that this figure of "fair rent" will be the annual value which will have to be revised after eight years when the proviso will no longer be applicable and the "fair rent" will have to be determined on the basis of the formula contained in the said provision20. In the present case, it is not known as to when the property was first let out and when does the period of eight years come to an end. It is no doubt true that in special leave petition, it has been stated that the premises were constructed after 1964 and they were let out only in 1966 but the assessing authority has not examined the question by taking into consideration the effect of the proviso to Section 8(1)(a) of the Tenancy Act. It would, therefore, be necessary to determine as to when the property was first let out so that for a period of eight years during the subsistence of tenancy, the contractual rent being the "fair rent" will be regarded as the basis for fixing the annual value under Section 168 of the Municipal Act. Thereafter the annual value has to be determined in accordance with Section 8(1)(a) of the Tenancy Act | 1 | 5,030 | 855 | ### 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:
Municipal Act is different from the M.P. Municipal Act, 1956. Section 168 of the Municipal Act is similar to the corresponding provisions in Delhi and in Andhra Pradesh and therefore it is the ratio of the decisions in the case of Padma Debi, Dewan Daulat Rai and Guntur Municipal Council which should apply. 16. There is one more decision to which reference need be made, i.e., the case of Asstt. G.M., Central Bank of India v. Commr., Municipal Corpn. for the City of Ahmedabad. Here again the question arose with regard to the determination of the annual letting value of the property. It was contended that the principles of Dewan Daulat Rai case should be followed but this contention was repelled in view of the fact that the Municipal Corporation Act applicable in Ahmedabad after its amendment itself defined what the annual letting value was to be. This provision also contained a non obstante clause similar to one which was in the M.P. Municipal Corporation Act and as a reason thereof, the rateable value was determined according to the principles contained in the Municipal Corporation Act and not as per the fair rent or the standard rent determinable under the Rent Restriction Act. 17. From the aforesaid decisions, the principle which is deducible is that when the Municipal Act requires the determination of the annual value, that Act has to be read along with Rent Restriction Act which provides for the determination of fair rent or standard rent. Reading the two Acts together the rateable value cannot be more than the fair or standard rent which can be fixed under the Rent Control Act. The exception to this rule is that whenever a any Municipal Act itself provides the mode of determination of the annual letting value like the Central Bank of India case relating to Ahmedabad or contains a non obstante clause as in Ratnaprabha case then the determination of the annual letting value has to be according to the terms of the Municipal Act. In the present case, Section 168 of the Municipal Act does not contain any non obstante clause so as to make the Tenancy Act inapplicable and nor does the Act itself provide the method or basis for determining the annual value. This Act has, therefore, to be read along with Tenancy Act of 1956 and it is the fair rent determinable under Section 8(1)(a) which alone can be the annual value for the purpose of property tax. 18. For the aforesaid reasons, we are of the view that the decision of the Calcutta High Court, under appeal, cannot be sustained. The annual value under Section 168 of the Municipal Act has to be fixed on the basis of fair rent determinable under Section 8 of the Tenancy Act. 19. We, however, find that the proviso to Section 8(1)(a) of the Tenancy Act has not been considered so far in dealing with the question with regard to the fixation of the annual value. The decisions of this Court referred to hereinabove clearly bring out that the annual value cannot be more than the "fair rent" or "standard rent" (whatever may be the nomenclature in the relevant law of the State) which is determinable under the Rent Restriction Act. The proviso to Section 8(1)(a) of the Tenancy Act regards the contractual rent for a period of 8 years when the premises was first let out to be the "fair rent". When, therefore, the rateable value or the annual value for the purpose of determining the municipal tax has to be the "fair rent" determinable under the Tenancy Act then, because of the proviso, it is the agreed rent for a period of eight years which is the "fair rent" and has to be taken into consideration in determining the property tax. Because of the proviso the annual value of the building for the period of eight years from the first letting has to be fixed on the basis of contractual rent and thereafter the annual value will have to be revised and fixed as per the formula contained in Section 8(1)(a) of the Tenancy Act namely 6 3/4 per cent per annum on the aggregate amount of the actual cost of construction and the market price of the land on the date of commencement of construction as provided in that provision. To put it differently, it is only the "fair rent" which can be taken into consideration for the purpose of fixing the annual value under the Municipal Act. Because of the fiction created by the proviso to Section 8(1)(d) of the Tenancy Act, the contractual rent is regarded as the "fair rent" for a period of eight years from the date the premises was first let out. It is for that reason that this figure of "fair rent" will be the annual value which will have to be revised after eight years when the proviso will no longer be applicable and the "fair rent" will have to be determined on the basis of the formula contained in the said provision. 20. In the present case, it is not known as to when the property was first let out and when does the period of eight years come to an end. It is no doubt true that in special leave petition, it has been stated that the premises were constructed after 1964 and they were let out only in 1966 but the assessing authority has not examined the question by taking into consideration the effect of the proviso to Section 8(1)(a) of the Tenancy Act. It would, therefore, be necessary to determine as to when the property was first let out so that for a period of eight years during the subsistence of tenancy, the contractual rent being the "fair rent" will be regarded as the basis for fixing the annual value under Section 168 of the Municipal Act. Thereafter the annual value has to be determined in accordance with Section 8(1)(a) of the Tenancy Act.
### Response:
1
### Explanation:
14. The principle, namely, that the annual value for the purpose of the Municipal Act could not be in excess of the standard rent even if the landlord was entitled to receive the contractual rent in respect of a building to which the rent restriction law applies has been elaborately discussed in Dewan Daulat Rai case. It was sought to be contended on behalf of the New Delhi Municipal Committee that till the fixation of the standard rent, the landlord could legally receive the contractual rent, more so when the tenants right to get the standard rent had come to an end with a limitation for moving such an application having expired, therefore, the annual value should be the actual rent which was legally received by the landlord. Rejecting this contention, this Court applied and followed the decision in Padma Debi case and also the decision in Corpn. of Calcutta v. LIC of India where Padma Debi case and Guntur Municipal Council case had been followed18. For the aforesaid reasons, we are of the view that the decision of the Calcutta High Court, under appeal, cannot be sustained. The annual value under Section 168 of the Municipal Act has to be fixed on the basis of fair rent determinable under Section 8 of the Tenancy Act19. We, however, find that the proviso to Section 8(1)(a) of the Tenancy Act has not been considered so far in dealing with the question with regard to the fixation of the annual value. The decisions of this Court referred to hereinabove clearly bring out that the annual value cannot be more than the "fair rent" or "standard rent" (whatever may be the nomenclature in the relevant law of the State) which is determinable under the Rent Restriction Act. The proviso to Section 8(1)(a) of the Tenancy Act regards the contractual rent for a period of 8 years when the premises was first let out to be the "fair rent". When, therefore, the rateable value or the annual value for the purpose of determining the municipal tax has to be the "fair rent" determinable under the Tenancy Act then, because of the proviso, it is the agreed rent for a period of eight years which is the "fair rent" and has to be taken into consideration in determining the property tax. Because of the proviso the annual value of the building for the period of eight years from the first letting has to be fixed on the basis of contractual rent and thereafter the annual value will have to be revised and fixed as per the formula contained in Section 8(1)(a) of the Tenancy Act namely 6 3/4 per cent per annum on the aggregate amount of the actual cost of construction and the market price of the land on the date of commencement of construction as provided in that provision. To put it differently, it is only the "fair rent" which can be taken into consideration for the purpose of fixing the annual value under the Municipal Act. Because of the fiction created by the proviso to Section 8(1)(d) of the Tenancy Act, the contractual rent is regarded as the "fair rent" for a period of eight years from the date the premises was first let out. It is for that reason that this figure of "fair rent" will be the annual value which will have to be revised after eight years when the proviso will no longer be applicable and the "fair rent" will have to be determined on the basis of the formula contained in the said provision20. In the present case, it is not known as to when the property was first let out and when does the period of eight years come to an end. It is no doubt true that in special leave petition, it has been stated that the premises were constructed after 1964 and they were let out only in 1966 but the assessing authority has not examined the question by taking into consideration the effect of the proviso to Section 8(1)(a) of the Tenancy Act. It would, therefore, be necessary to determine as to when the property was first let out so that for a period of eight years during the subsistence of tenancy, the contractual rent being the "fair rent" will be regarded as the basis for fixing the annual value under Section 168 of the Municipal Act. Thereafter the annual value has to be determined in accordance with Section 8(1)(a) of the Tenancy Act
|
Maya Devi (D) Through Lrs & Others Vs. State of Haryana & Another | works and the second is the cost of the development works. .…..... 20. Therefore the deduction for the ‘development factor? to be made with reference to the price of a small plot in a developed layout, to arrive at the cost of undeveloped land, will be for more than the deduction with reference to the price of a small plot in an unauthorised private layout or an industrial layout. It is also well known that the development cost incurred by statutory agencies is much higher than the cost incurred by private developers, having regard to higher overheads and expenditure." The same principle was reiterated in Andhra Pradesh Housing Board v. K. Manohar Reddy and Ors. (2010) 12 SCC 707. 10. In a catena of judgments, this Court has taken the view to apply one-third deduction towards the development charges. After referring to various case laws on the question of deduction for development, in Major General Kapil Mehra and Ors. v. Union of India and Anr. (2015) 2 SCC 262 , this Court held as under: "35. Reiterating the rule of one-third deduction towards development, in Sabhia Mohammed Yusuf Abdul Hamid Mulla v. Land Acquisition Officer (2012) 7 SCC 595 , this Court in para 19 held as under: (SCC pp. 606-07?19. In fixing the market value of the acquired land, which is undeveloped or underdeveloped, the courts have generally approved deduction of 1/3rd of the market value towards development cost except when no development is required to be made for implementation of the public purpose for which land is acquired. In Kasturi v. State of Haryana (2003) 1 SCC 354 the Court held: (SCC pp. 359-60, para 7) ‘7. … It is well settled that in respect of agricultural land or undeveloped land which has potential value for housing or commercial purposes, normally 1/3rd amount of compensation has to be deducted out of the amount of compensation payable on the acquired land subject to certain variations depending on its nature, location, extent of expenditure involved for development and the area required for road and other civic amenities to develop the land so as to make the plots for residential or commercial purposes. A land may be plain or uneven, the soil of the land may be soft or hard bearing on the foundation for the purpose of making construction; maybe the land is situated in the midst of a developed area all around but that land may have a hillock or may be low-lying or may be having deep ditches. So the amount of expenses that may be incurredin developing the area also varies.....................There may be various factual factors which may have to be taken into consideration while applying the cut in payment of compensation towards developmental charges, maybe in some cases it is more than 1/3rd and in some cases less than 1/3rd. It must be remembered that there is difference between a developed area and an area having potential value, which is yet to be developed. The fact that an area is developed or adjacent to a developed area will not ipso facto make every land situated in the area also developed to be valued as a building site or plot, particularly when vast tracts are acquired, as in this case, for development purpose.? The rule of 1/3rd deduction was reiterated in Tejumal Bhojwani v. State of U.P. (2003) 10 SCC 525 , V. Hanumantha Reddy v. Land Acquisition Officer (2003) 12 SCC 642 , H.P. Housing Board v. Bharat S. Negi (2004) 2 SCC 184 and Kiran Tandon v. Allahabad Development Authority (2004) 10 SCC 745. ?(emphasis in original) 36. While determining the market value of the acquired land, normally one-third deduction i.e. 33 1/3% towards development charges is allowed. One-third deduction towards development was allowed in Tehsildar (LA) v. A. Mangala Gowri (1991) 4 SCC 218 , Gulzara Singh v. State of Punjab (1993) 4 SCC 245 , Santosh Kumari v. State of Haryana (1996) 10 SCC 631 , Revenue Divl. Officer and LAO v. Sk. Azam Saheb (2009) 4 SCC 395 , A.P. Housing Board v. K. Manohar Reddy (2010) 12 SCC 707 , Ashrafi v. State of Haryana (2013) 5 SCC 527 and Kashmir Singh v. State of Haryana (2014) 2 SCC 165. 37. Depending on the nature and location of the acquired land, extent of land required to be set apart and expenses involved for development, 30% to 50% deduction towards development was allowed in Haryana State Agricultural Market Board v. Krishan Kumar (2011) 15 SCC 297, Director, Land Acquisition v. Malla Atchinaidu (2006) 12 SCC 87 , Mummidi Apparao v. Nagarjuna Fertilizers & Chemicals Ltd. (2009) 4 SCC 402 and Lal Chand v. Union of India (2009) 15 SCC 769. 38. In few other cases, deduction of more than 50% was upheld. In the facts and circumstances of the case in Basavva v. Land Acquisition Officer (1996) 9 SCC 640 , this Court upheld the deduction of 65%. In Kanta Devi v. State of Haryana (2008) 15 SCC 201 , deduction of 60% towards development charges was held to be legal. This Court in Subh Ram v. State of Haryana (2010) 1 SCC 444 , held that deduction of 67% amount was not improper. Similarly, in Chandrashekar v. Land Acquisition Officer (2012) 1 SCC 390 , deduction of 70% was upheld."11. In Subh Ram and Others v. State of Haryana and Anr. (2010) 1 SCC 444 , the deduction of 67% was held to be not improper. In the case in hand, the High Court applied deduction at 67.5% which in our considered view is on the higher side. In the facts and circumstances of the present case and considering that the exemplar dated 26.05.1983 was for a small extent of land and that the acquired land has to be developed for construction of warehouse, we deem it appropriate to apply one-third deduction and deducting one-third that is Rs.2,21,629/- from Rs.6,64,887/-, the compensation to be awarded is arrived at Rs.4,43,258/- per acre. | 1[ds]6. So far as the first contention is concerned, the sale deed relied upon by the appellants/claimants dated 27.12.1988 is post notification. Sub-section (1) of Section 23 of the Act provides that the compensation to be awarded shall be determined by the reference court, based upon the market value of the acquired land at the date of the publication of the notification under Section 4(1). In Kolkata Metropolitan Development Authority v. Gobinda Chandra Makal and Anr. (2011) 9 SCC 207 , it was held that the relevant date for determining the compensation is the date of publication of the notification under Section 4(1) of the Act in the Gazette.the ratio of the above decision, we are of the view that the post notification instances cannot be taken into consideration for determining the compensation of the acquired land.So far as the contention regarding deduction at the rate of 67.5% for development charges is concerned, the exemplar relied upon by the High Court dated 26.05.1983 was for a small extent of land of 9 marlas which was sold for Rs.25,500/-.In a catena of judgments, this Court has taken the view to apply one-third deduction towards the development charges.the case in hand, the High Court applied deduction at 67.5% which in our considered view is on the higher side. In the facts and circumstances of the present case and considering that the exemplar dated 26.05.1983 was for a small extent of land and that the acquired land has to be developed for construction of warehouse, we deem it appropriate to apply one-third deduction and deducting one-third that is Rs.2,21,629/- from Rs.6,64,887/-, the compensation to be awarded is arrived at Rs.4,43,258/- per acre. | 1 | 2,563 | 310 | ### 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:
works and the second is the cost of the development works. .…..... 20. Therefore the deduction for the ‘development factor? to be made with reference to the price of a small plot in a developed layout, to arrive at the cost of undeveloped land, will be for more than the deduction with reference to the price of a small plot in an unauthorised private layout or an industrial layout. It is also well known that the development cost incurred by statutory agencies is much higher than the cost incurred by private developers, having regard to higher overheads and expenditure." The same principle was reiterated in Andhra Pradesh Housing Board v. K. Manohar Reddy and Ors. (2010) 12 SCC 707. 10. In a catena of judgments, this Court has taken the view to apply one-third deduction towards the development charges. After referring to various case laws on the question of deduction for development, in Major General Kapil Mehra and Ors. v. Union of India and Anr. (2015) 2 SCC 262 , this Court held as under: "35. Reiterating the rule of one-third deduction towards development, in Sabhia Mohammed Yusuf Abdul Hamid Mulla v. Land Acquisition Officer (2012) 7 SCC 595 , this Court in para 19 held as under: (SCC pp. 606-07?19. In fixing the market value of the acquired land, which is undeveloped or underdeveloped, the courts have generally approved deduction of 1/3rd of the market value towards development cost except when no development is required to be made for implementation of the public purpose for which land is acquired. In Kasturi v. State of Haryana (2003) 1 SCC 354 the Court held: (SCC pp. 359-60, para 7) ‘7. … It is well settled that in respect of agricultural land or undeveloped land which has potential value for housing or commercial purposes, normally 1/3rd amount of compensation has to be deducted out of the amount of compensation payable on the acquired land subject to certain variations depending on its nature, location, extent of expenditure involved for development and the area required for road and other civic amenities to develop the land so as to make the plots for residential or commercial purposes. A land may be plain or uneven, the soil of the land may be soft or hard bearing on the foundation for the purpose of making construction; maybe the land is situated in the midst of a developed area all around but that land may have a hillock or may be low-lying or may be having deep ditches. So the amount of expenses that may be incurredin developing the area also varies.....................There may be various factual factors which may have to be taken into consideration while applying the cut in payment of compensation towards developmental charges, maybe in some cases it is more than 1/3rd and in some cases less than 1/3rd. It must be remembered that there is difference between a developed area and an area having potential value, which is yet to be developed. The fact that an area is developed or adjacent to a developed area will not ipso facto make every land situated in the area also developed to be valued as a building site or plot, particularly when vast tracts are acquired, as in this case, for development purpose.? The rule of 1/3rd deduction was reiterated in Tejumal Bhojwani v. State of U.P. (2003) 10 SCC 525 , V. Hanumantha Reddy v. Land Acquisition Officer (2003) 12 SCC 642 , H.P. Housing Board v. Bharat S. Negi (2004) 2 SCC 184 and Kiran Tandon v. Allahabad Development Authority (2004) 10 SCC 745. ?(emphasis in original) 36. While determining the market value of the acquired land, normally one-third deduction i.e. 33 1/3% towards development charges is allowed. One-third deduction towards development was allowed in Tehsildar (LA) v. A. Mangala Gowri (1991) 4 SCC 218 , Gulzara Singh v. State of Punjab (1993) 4 SCC 245 , Santosh Kumari v. State of Haryana (1996) 10 SCC 631 , Revenue Divl. Officer and LAO v. Sk. Azam Saheb (2009) 4 SCC 395 , A.P. Housing Board v. K. Manohar Reddy (2010) 12 SCC 707 , Ashrafi v. State of Haryana (2013) 5 SCC 527 and Kashmir Singh v. State of Haryana (2014) 2 SCC 165. 37. Depending on the nature and location of the acquired land, extent of land required to be set apart and expenses involved for development, 30% to 50% deduction towards development was allowed in Haryana State Agricultural Market Board v. Krishan Kumar (2011) 15 SCC 297, Director, Land Acquisition v. Malla Atchinaidu (2006) 12 SCC 87 , Mummidi Apparao v. Nagarjuna Fertilizers & Chemicals Ltd. (2009) 4 SCC 402 and Lal Chand v. Union of India (2009) 15 SCC 769. 38. In few other cases, deduction of more than 50% was upheld. In the facts and circumstances of the case in Basavva v. Land Acquisition Officer (1996) 9 SCC 640 , this Court upheld the deduction of 65%. In Kanta Devi v. State of Haryana (2008) 15 SCC 201 , deduction of 60% towards development charges was held to be legal. This Court in Subh Ram v. State of Haryana (2010) 1 SCC 444 , held that deduction of 67% amount was not improper. Similarly, in Chandrashekar v. Land Acquisition Officer (2012) 1 SCC 390 , deduction of 70% was upheld."11. In Subh Ram and Others v. State of Haryana and Anr. (2010) 1 SCC 444 , the deduction of 67% was held to be not improper. In the case in hand, the High Court applied deduction at 67.5% which in our considered view is on the higher side. In the facts and circumstances of the present case and considering that the exemplar dated 26.05.1983 was for a small extent of land and that the acquired land has to be developed for construction of warehouse, we deem it appropriate to apply one-third deduction and deducting one-third that is Rs.2,21,629/- from Rs.6,64,887/-, the compensation to be awarded is arrived at Rs.4,43,258/- per acre.
### Response:
1
### Explanation:
6. So far as the first contention is concerned, the sale deed relied upon by the appellants/claimants dated 27.12.1988 is post notification. Sub-section (1) of Section 23 of the Act provides that the compensation to be awarded shall be determined by the reference court, based upon the market value of the acquired land at the date of the publication of the notification under Section 4(1). In Kolkata Metropolitan Development Authority v. Gobinda Chandra Makal and Anr. (2011) 9 SCC 207 , it was held that the relevant date for determining the compensation is the date of publication of the notification under Section 4(1) of the Act in the Gazette.the ratio of the above decision, we are of the view that the post notification instances cannot be taken into consideration for determining the compensation of the acquired land.So far as the contention regarding deduction at the rate of 67.5% for development charges is concerned, the exemplar relied upon by the High Court dated 26.05.1983 was for a small extent of land of 9 marlas which was sold for Rs.25,500/-.In a catena of judgments, this Court has taken the view to apply one-third deduction towards the development charges.the case in hand, the High Court applied deduction at 67.5% which in our considered view is on the higher side. In the facts and circumstances of the present case and considering that the exemplar dated 26.05.1983 was for a small extent of land and that the acquired land has to be developed for construction of warehouse, we deem it appropriate to apply one-third deduction and deducting one-third that is Rs.2,21,629/- from Rs.6,64,887/-, the compensation to be awarded is arrived at Rs.4,43,258/- per acre.
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SHRI MARUTI TUKARAM BAGAWE Vs. THE STATE OF MAHARASHTRA | be accepted. Point No.3 16. The High Court by the impugned judgment by directions issued in paragraph 16(B) permitted the respondents to recover excess payments made to the petitioners after 11.09.2008 by way of monthly instalments and the respondents were restrained from effecting recovery or benefits secured by the petitioners prior to 11.09.2008. The appellants submission is that they were entitled to retain the higher pay-scale and excess payments made to them till the Maharashtra Administrative Tribunal rejected their application on 04.12.2014 whereas the learned counsel for the respondents submits that the appellants being bound by their undertaking to refund the excess amount, which were given to them in pursuance of the Government Resolution dated 06.10.2009, they cannot be allowed to retain excess amount received by them after having given undertaking to refund the amount. As noted above, the Resolution dated 26.10.2004 was set aside by the Maharashtra Administrative Tribunal in O.A. No.936 of 2005 by judgment dated 17.11.2006. A Writ Petition No.946 of 2007 was filed by the appellants challenging the order of the Tribunal. During pendency of the Writ Petition No.946 of 2007, the Government Resolution dated 11.09.2008 was passed. The order of the Tribunal dated 17.11.2006 was stayed by the High court by interim order dated 13.02.2007, hence when the Resolution dated 11.09.2008 was passed, a Government Resolution dated 06.10.2009 provided for following:- For the decision of the Tribunal on dated 17.11.2006, Hon. High Court has stayed interim at the hearing on the first dated 13.02.2007 and as the said stay is permanent, the implementation of Government Resolution of Finance Department on dated 11.09.2008, subject of final judgment of Hon. High Court, there is no objection to give benefit in connection with services to all related employees and retired employees. However, showing to all related employees to have given the benefits subject to final judgment of Hon. High Court, if Hon. High Court is agreed the Government Resolution of Finance Department on dated 11.09.2008, pursuant to this, I have no objection to recover arising complete amount from financial benefits payable to me or from my retirement salary. Such undertaking shall be taken from all related employees also retired employees. Sd/- Joint Director (Administration)Accounts & Treasuries,Maharashtra, Mumbai. 17. The above Resolution contemplated that benefit in connection with services to all related employees and retired employees be given subject to final judgment of the High Court and if the High Court is agreed with the Government Resolution dated 11.09.2008, the employee undertakes to return the benefits. In pursuance of the above Resolution dated 06.10.2009, appellants and similarly situated employees had submitted their undertakings. The undertaking given by the employees, thus, was subsequent to the above Resolution. One of the undertakings given by one of the appellants – J.C. Jaulkar (appellant No.3) has been placed before us by learned counsel for the respondents, which is to the following effect:- UNDERTAKING I solemnly affirm that benefits to awarded under Career Assured Progression Scheme vide G.R. dated 26.10.2004 are withdrawn vide G.R. dated 11.09.2008. Therefore, Shri M.T. Bagwe and Others have filed appeal No.946 of 2007 in Honble High Court, Mumbai. Honble High Court, Mumbai had given Ad-interim stay vide order dated 13.02.2007 which is still in operation. If Honble High Court upheld the G.R. dated 11.09.2008, I shall refund the entire amount payable to the Government from monetary benefits payable to me or through my salary. Date : 28.10.2009Place : GondiaSd/- (J.C.Jaulkar)Senior Clerk District Treasury Office, Gondia 18. The Writ Petition No. 946 of 2007 was decided by the High Court by its judgment dated 05.12.2009. Paragraph 3 of the judgment of the High Court is as follows:- 3. Now taking overall view of the matter, it is clear that as the Government Resolution dated 26.10.2004 itself has been withdrawn by the Government, the Original application no.936 of 2005 filed by the petitioners itself become infructuous. Consequently, the order passed by the Maharashtra Administrative Tribunal in that Original application is set aside. However, the Maharashtra Administrative Tribunal shall be at liberty to consider the fresh Original Application filed by the petitioners in accordance with law and make orders thereon in accordance with law. However, considering that certain benefits have been extended to the petitioners because of the decision contained in letter dated 6.10.2009, it is directed if any benefits are already given to the petitioners pursuant to the decision contained in letter dated 6.10.2009, they shall not be withdrawn till the Original application filed by the petitioners is decided by the Maharashtra Administrative Tribunal. The petition is disposed of. No order as to costs. (D.K. DESHMUKH, J.)(K.K. TATED, J.) 19. The final order passed by the High Court in the writ petition No.946 of 2007 provided that benefit, which have been given to the petitioner shall not be withdrawn till the original application filed by the petitioner is decided by the Maharashtra Administrative Tribunal. The High Court in its judgment dated 05.12.2009 did not pronounce on the validity of the Government Resolution dated 11.09.2008. The undertaking which was given by the appellants and other employees was to the effect that if the High Court upheld the Government Resolution dated 11.09.2008, they shall refund the amount received. The High Court vide its judgment dated 05.12.2009 in fact permitted the appellants to retain the benefits till the original application filed by the appellant is decided. Original Application filed by the appellant was ultimately decided on 04.12.2014 by which it was rejected. By order dated 04.12.2014 the Maharashtra Administrative Tribunal upheld the Resolution dated 11.09.2008, thus, the correctness of Resolution dated 11.09.2008 was upheld only on 04.12.2014. Thus, the benefits, which were received by the appellants till 04.12.2014 were under the order of the High Court dated 05.12.2009. We, thus, find substance in the submission of the learned counsel for the appellant that the benefit received by them till 04.12.2014 be not withdrawn when it pronounced that the Resolution dated 11.09.2008 was valid, the benefit received by the appellants thereafter can only be withdrawn. | 1[ds]10. The Resolution of the Government dated 24.10.2004 providing for scale of Deputy Accountant to Junior Clerks, who have passed the prescribed departmental examination was withdrawn by subsequent Government Resolution dated 11.09.2008. The Tribunal is right in its view that the Government Resolution dated 26.10.2004 and 11.09.2008 were issued by the State Government in exercise of its executive powers. Both the above Resolutions do not seek to alter the service conditions of the appellants provided by Government Resolution dated 08.06.1995. Government Resolution dated 26.10.2004 extended certain additional benefits to Finance Department. The State Government letter realise that such an action will create an anomalous situation and which actually created anomalous situation. Junior Clerks, who were lower to the Senior Clerks were able to march in the next higher scale of the Senior Clerks without being coming in the scale of Senior Clerks and had started drawing salary higher to the various Senior Clerks due to which Senior Clerks had filed Original Application in the Maharashtra Administrative Tribunal, which was allowed setting aside the order dated 26.10.2004, which was subsequently set aside by the High Court. The State Government reconsidered its earlier decision and a Government Resolution was passed on 11.10.2008 recalling its earlier decision. The service condition of the employees working in various departments is in the domain of the State Government. The recruitment and promotion of the Junior Clerks, Senior Clerks, in District Treasury were governed by the executive instructions, which can be modified, altered in the same manner in which it was provided by the State Government. The Maharashtra Administrative Tribunal did not commit any error in upholding the Government Resolution dated 11.09.2008. The benefit, which was available to Junior Clerks of next higher grade after completion of 12 years continues service is still admissible, which could be very well be availed by them11. We, thus, hold that Tribunal did not commit any error in upholding the Government Resolution dated 11.09.200814. The post of Junior Clerks is borne in the District Cadre and they are also called Treasury Clerks. The post of Senior Clerks is filled up by promotion and nomination in the ratio of 3:1. Junior Clerks, who have passed the examination are eligible for promotion. The Government Resolution dated 08.06.1995 provides for grant of pay-scale of the next promotional post in the promotional hierarchy after completion of 12 years of continuous service. Vide Resolution dated 08.06.1995, Junior Clerks were only entitled for the next promotional post, i.e., promotional post of Senior Clerks and under Resolution dated 08.06.1995, they were not entitled to receive a higher promotional post, i.e., post of Deputy Accountants, which is filled up by promotion of Senior Clerks15. We, thus, do not find any substance in the submission of the appellant that appellants were entitled for grant of pay-scale of Deputy Accountant despite withdrawal of the Resolution dated 26.10.2004. The appellant themselves have filed Annexure P-2 as the statement showing service particulars of appellants, which indicate that the pay-scale of Deputy Accountant was granted to the appellants on the basis of Government Resolution dated 26.10.2004. The appellants, thus, were not granted scale of Deputy Accountant by virtue of Resolution dated 08.06.1995, hence the submission of the appellants that they are entitled for pay-scale of Deputy Accountant despite withdrawal of Resolution dated 26.10.2004 cannot be acceptedAs noted above, the Resolution dated 26.10.2004 was set aside by the Maharashtra Administrative Tribunal in O.A. No.936 of 2005 by judgment dated 17.11.2006. A Writ Petition No.946 of 2007 was filed by the appellants challenging the order of the Tribunal. During pendency of the Writ Petition No.946 of 2007, the Government Resolution dated 11.09.2008 was passed17. The above Resolution contemplated that benefit in connection with services to all related employees and retired employees be given subject to final judgment of the High Court and if the High Court is agreed with the Government Resolution dated 11.09.2008, the employee undertakes to return the benefits. In pursuance of the above Resolution dated 06.10.2009, appellants and similarly situated employees had submitted their undertakings. The undertaking given by the employees, thus, was subsequent to the above Resolution19. The final order passed by the High Court in the writ petition No.946 of 2007 provided that benefit, which have been given to the petitioner shall not be withdrawn till the original application filed by the petitioner is decided by the Maharashtra Administrative Tribunal. The High Court in its judgment dated 05.12.2009 did not pronounce on the validity of the Government Resolution dated 11.09.2008. The undertaking which was given by the appellants and other employees was to the effect that if the High Court upheld the Government Resolution dated 11.09.2008, they shall refund the amount received. The High Court vide its judgment dated 05.12.2009 in fact permitted the appellants to retain the benefits till the original application filed by the appellant is decided. Original Application filed by the appellant was ultimately decided on 04.12.2014 by which it was rejected. By order dated 04.12.2014 the Maharashtra Administrative Tribunal upheld the Resolution dated 11.09.2008, thus, the correctness of Resolution dated 11.09.2008 was upheld only on 04.12.2014. Thus, the benefits, which were received by the appellants till 04.12.2014 were under the order of the High Court dated 05.12.2009. We, thus, find substance in the submission of the learned counsel for the appellant that the benefit received by them till 04.12.2014 be not withdrawn when it pronounced that the Resolution dated 11.09.2008 was valid, the benefit received by the appellants thereafter can only be withdrawn. | 1 | 3,681 | 997 | ### 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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be accepted. Point No.3 16. The High Court by the impugned judgment by directions issued in paragraph 16(B) permitted the respondents to recover excess payments made to the petitioners after 11.09.2008 by way of monthly instalments and the respondents were restrained from effecting recovery or benefits secured by the petitioners prior to 11.09.2008. The appellants submission is that they were entitled to retain the higher pay-scale and excess payments made to them till the Maharashtra Administrative Tribunal rejected their application on 04.12.2014 whereas the learned counsel for the respondents submits that the appellants being bound by their undertaking to refund the excess amount, which were given to them in pursuance of the Government Resolution dated 06.10.2009, they cannot be allowed to retain excess amount received by them after having given undertaking to refund the amount. As noted above, the Resolution dated 26.10.2004 was set aside by the Maharashtra Administrative Tribunal in O.A. No.936 of 2005 by judgment dated 17.11.2006. A Writ Petition No.946 of 2007 was filed by the appellants challenging the order of the Tribunal. During pendency of the Writ Petition No.946 of 2007, the Government Resolution dated 11.09.2008 was passed. The order of the Tribunal dated 17.11.2006 was stayed by the High court by interim order dated 13.02.2007, hence when the Resolution dated 11.09.2008 was passed, a Government Resolution dated 06.10.2009 provided for following:- For the decision of the Tribunal on dated 17.11.2006, Hon. High Court has stayed interim at the hearing on the first dated 13.02.2007 and as the said stay is permanent, the implementation of Government Resolution of Finance Department on dated 11.09.2008, subject of final judgment of Hon. High Court, there is no objection to give benefit in connection with services to all related employees and retired employees. However, showing to all related employees to have given the benefits subject to final judgment of Hon. High Court, if Hon. High Court is agreed the Government Resolution of Finance Department on dated 11.09.2008, pursuant to this, I have no objection to recover arising complete amount from financial benefits payable to me or from my retirement salary. Such undertaking shall be taken from all related employees also retired employees. Sd/- Joint Director (Administration)Accounts & Treasuries,Maharashtra, Mumbai. 17. The above Resolution contemplated that benefit in connection with services to all related employees and retired employees be given subject to final judgment of the High Court and if the High Court is agreed with the Government Resolution dated 11.09.2008, the employee undertakes to return the benefits. In pursuance of the above Resolution dated 06.10.2009, appellants and similarly situated employees had submitted their undertakings. The undertaking given by the employees, thus, was subsequent to the above Resolution. One of the undertakings given by one of the appellants – J.C. Jaulkar (appellant No.3) has been placed before us by learned counsel for the respondents, which is to the following effect:- UNDERTAKING I solemnly affirm that benefits to awarded under Career Assured Progression Scheme vide G.R. dated 26.10.2004 are withdrawn vide G.R. dated 11.09.2008. Therefore, Shri M.T. Bagwe and Others have filed appeal No.946 of 2007 in Honble High Court, Mumbai. Honble High Court, Mumbai had given Ad-interim stay vide order dated 13.02.2007 which is still in operation. If Honble High Court upheld the G.R. dated 11.09.2008, I shall refund the entire amount payable to the Government from monetary benefits payable to me or through my salary. Date : 28.10.2009Place : GondiaSd/- (J.C.Jaulkar)Senior Clerk District Treasury Office, Gondia 18. The Writ Petition No. 946 of 2007 was decided by the High Court by its judgment dated 05.12.2009. Paragraph 3 of the judgment of the High Court is as follows:- 3. Now taking overall view of the matter, it is clear that as the Government Resolution dated 26.10.2004 itself has been withdrawn by the Government, the Original application no.936 of 2005 filed by the petitioners itself become infructuous. Consequently, the order passed by the Maharashtra Administrative Tribunal in that Original application is set aside. However, the Maharashtra Administrative Tribunal shall be at liberty to consider the fresh Original Application filed by the petitioners in accordance with law and make orders thereon in accordance with law. However, considering that certain benefits have been extended to the petitioners because of the decision contained in letter dated 6.10.2009, it is directed if any benefits are already given to the petitioners pursuant to the decision contained in letter dated 6.10.2009, they shall not be withdrawn till the Original application filed by the petitioners is decided by the Maharashtra Administrative Tribunal. The petition is disposed of. No order as to costs. (D.K. DESHMUKH, J.)(K.K. TATED, J.) 19. The final order passed by the High Court in the writ petition No.946 of 2007 provided that benefit, which have been given to the petitioner shall not be withdrawn till the original application filed by the petitioner is decided by the Maharashtra Administrative Tribunal. The High Court in its judgment dated 05.12.2009 did not pronounce on the validity of the Government Resolution dated 11.09.2008. The undertaking which was given by the appellants and other employees was to the effect that if the High Court upheld the Government Resolution dated 11.09.2008, they shall refund the amount received. The High Court vide its judgment dated 05.12.2009 in fact permitted the appellants to retain the benefits till the original application filed by the appellant is decided. Original Application filed by the appellant was ultimately decided on 04.12.2014 by which it was rejected. By order dated 04.12.2014 the Maharashtra Administrative Tribunal upheld the Resolution dated 11.09.2008, thus, the correctness of Resolution dated 11.09.2008 was upheld only on 04.12.2014. Thus, the benefits, which were received by the appellants till 04.12.2014 were under the order of the High Court dated 05.12.2009. We, thus, find substance in the submission of the learned counsel for the appellant that the benefit received by them till 04.12.2014 be not withdrawn when it pronounced that the Resolution dated 11.09.2008 was valid, the benefit received by the appellants thereafter can only be withdrawn.
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10. The Resolution of the Government dated 24.10.2004 providing for scale of Deputy Accountant to Junior Clerks, who have passed the prescribed departmental examination was withdrawn by subsequent Government Resolution dated 11.09.2008. The Tribunal is right in its view that the Government Resolution dated 26.10.2004 and 11.09.2008 were issued by the State Government in exercise of its executive powers. Both the above Resolutions do not seek to alter the service conditions of the appellants provided by Government Resolution dated 08.06.1995. Government Resolution dated 26.10.2004 extended certain additional benefits to Finance Department. The State Government letter realise that such an action will create an anomalous situation and which actually created anomalous situation. Junior Clerks, who were lower to the Senior Clerks were able to march in the next higher scale of the Senior Clerks without being coming in the scale of Senior Clerks and had started drawing salary higher to the various Senior Clerks due to which Senior Clerks had filed Original Application in the Maharashtra Administrative Tribunal, which was allowed setting aside the order dated 26.10.2004, which was subsequently set aside by the High Court. The State Government reconsidered its earlier decision and a Government Resolution was passed on 11.10.2008 recalling its earlier decision. The service condition of the employees working in various departments is in the domain of the State Government. The recruitment and promotion of the Junior Clerks, Senior Clerks, in District Treasury were governed by the executive instructions, which can be modified, altered in the same manner in which it was provided by the State Government. The Maharashtra Administrative Tribunal did not commit any error in upholding the Government Resolution dated 11.09.2008. The benefit, which was available to Junior Clerks of next higher grade after completion of 12 years continues service is still admissible, which could be very well be availed by them11. We, thus, hold that Tribunal did not commit any error in upholding the Government Resolution dated 11.09.200814. The post of Junior Clerks is borne in the District Cadre and they are also called Treasury Clerks. The post of Senior Clerks is filled up by promotion and nomination in the ratio of 3:1. Junior Clerks, who have passed the examination are eligible for promotion. The Government Resolution dated 08.06.1995 provides for grant of pay-scale of the next promotional post in the promotional hierarchy after completion of 12 years of continuous service. Vide Resolution dated 08.06.1995, Junior Clerks were only entitled for the next promotional post, i.e., promotional post of Senior Clerks and under Resolution dated 08.06.1995, they were not entitled to receive a higher promotional post, i.e., post of Deputy Accountants, which is filled up by promotion of Senior Clerks15. We, thus, do not find any substance in the submission of the appellant that appellants were entitled for grant of pay-scale of Deputy Accountant despite withdrawal of the Resolution dated 26.10.2004. The appellant themselves have filed Annexure P-2 as the statement showing service particulars of appellants, which indicate that the pay-scale of Deputy Accountant was granted to the appellants on the basis of Government Resolution dated 26.10.2004. The appellants, thus, were not granted scale of Deputy Accountant by virtue of Resolution dated 08.06.1995, hence the submission of the appellants that they are entitled for pay-scale of Deputy Accountant despite withdrawal of Resolution dated 26.10.2004 cannot be acceptedAs noted above, the Resolution dated 26.10.2004 was set aside by the Maharashtra Administrative Tribunal in O.A. No.936 of 2005 by judgment dated 17.11.2006. A Writ Petition No.946 of 2007 was filed by the appellants challenging the order of the Tribunal. During pendency of the Writ Petition No.946 of 2007, the Government Resolution dated 11.09.2008 was passed17. The above Resolution contemplated that benefit in connection with services to all related employees and retired employees be given subject to final judgment of the High Court and if the High Court is agreed with the Government Resolution dated 11.09.2008, the employee undertakes to return the benefits. In pursuance of the above Resolution dated 06.10.2009, appellants and similarly situated employees had submitted their undertakings. The undertaking given by the employees, thus, was subsequent to the above Resolution19. The final order passed by the High Court in the writ petition No.946 of 2007 provided that benefit, which have been given to the petitioner shall not be withdrawn till the original application filed by the petitioner is decided by the Maharashtra Administrative Tribunal. The High Court in its judgment dated 05.12.2009 did not pronounce on the validity of the Government Resolution dated 11.09.2008. The undertaking which was given by the appellants and other employees was to the effect that if the High Court upheld the Government Resolution dated 11.09.2008, they shall refund the amount received. The High Court vide its judgment dated 05.12.2009 in fact permitted the appellants to retain the benefits till the original application filed by the appellant is decided. Original Application filed by the appellant was ultimately decided on 04.12.2014 by which it was rejected. By order dated 04.12.2014 the Maharashtra Administrative Tribunal upheld the Resolution dated 11.09.2008, thus, the correctness of Resolution dated 11.09.2008 was upheld only on 04.12.2014. Thus, the benefits, which were received by the appellants till 04.12.2014 were under the order of the High Court dated 05.12.2009. We, thus, find substance in the submission of the learned counsel for the appellant that the benefit received by them till 04.12.2014 be not withdrawn when it pronounced that the Resolution dated 11.09.2008 was valid, the benefit received by the appellants thereafter can only be withdrawn.
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SANJIV PRAKASH Vs. SEEMA KUKREJA AND ORS | the Arbitration Act, post the amendments by Act 3 of 2016 (with retrospective effect from 23-10-2015) and even post the amendments vide Act 33 of 2019 (with effect from 9-8-2019), is no longer applicable. 154.2. Scope of judicial review and jurisdiction of the court under Sections 8 and 11 of the Arbitration Act is identical but extremely limited and restricted. 154.3. The general rule and principle, in view of the legislative mandate clear from Act 3 of 2016 and Act 33 of 2019, and the principle of severability and competence-competence, is that the Arbitral Tribunal is the preferred first authority to determine and decide all questions of non-arbitrability. The court has been conferred power of second look on aspects of non- arbitrability post the award in terms of sub-clauses (i), (ii) or (iv) of Section 34(2)(a) or sub-clause (i) of Section 34(2)(b) of the Arbitration Act. 154.4. Rarely as a demurrer the court may interfere at Section 8 or 11 stage when it is manifestly and ex facie certain that the arbitration agreement is non- existent, invalid or the disputes are non-arbitrable, though the nature and facet of non-arbitrability would, to some extent, determine the level and nature of judicial scrutiny. The restricted and limited review is to check and protect parties from being forced to arbitrate when the matter is demonstrably non-arbitrable and to cut off the deadwood. The court by default would refer the matter when contentions relating to non- arbitrability are plainly arguable; when consideration in summary proceedings would be insufficient and inconclusive; when facts are contested; when the party opposing arbitration adopts delaying tactics or impairs conduct of arbitration proceedings. This is not the stage for the court to enter into a mini trial or elaborate review so as to usurp the jurisdiction of the Arbitral Tribunal but to affirm and uphold integrity and efficacy of arbitration as an alternative dispute resolution mechanism. 155. Reference is, accordingly, answered. The Court then concluded, on the facts of that case, that it would be unsafe to conclude one way or the other that an arbitration agreement exists between the parties on a prima facie review of facts of that case, and that a deeper consideration must be left to an arbitrator, who is to examine the documentary and oral evidence and then arrive at a conclusion. 8. Likewise, in Bharat Sanchar Nigam Ltd. v. Nortel Networks India Pvt. Ltd., 2021 SCC OnLine SC 207, another Division Bench of this Court referred to Vidya Drolia (supra) and concluded: 39. The upshot of the judgment in Vidya Drolia [Vidya Drolia v. Durga Trading Corporation, (2021) 2 SCC 1] is affirmation of the position of law expounded in Duro Felguera [Duro Felguera, S.A. v. Gangavaram Port Ltd., (2017) 9 SCC 729] and Mayavati Trading [Mayavati Trading (P) Ltd. v. Pradyuat Deb Burman, (2019) 8 SCC 714] , which continue to hold the field. It must be understood clearly that Vidya Drolia [Vidya Drolia v. Durga Trading Corporation, (2021) 2 SCC 1] has not resurrected the pre-amendment position on the scope of power as held in SBP & Co. v. Patel Engineering [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618] . It is only in the very limited category of cases, where there is not even a vestige of doubt that the claim is ex facie time- barred, or that the dispute is non-arbitrable, that the court may decline to make the reference. However, if there is even the slightest doubt, the rule is to refer the disputes to arbitration, otherwise it would encroach upon what is essentially a matter to be determined by the tribunal. 9. Judged by the aforesaid tests, it is obvious that whether the MoU has been novated by the SHA dated 12.04.1996 requires a detailed consideration of the clauses of the two Agreements, together with the surrounding circumstances in which these Agreements were entered into, and a full consideration of the law on the subject. None of this can be done given the limited jurisdiction of a court under Section 11 of the 1996 Act. As has been held in paragraph 148 of Vidya Drolia (supra), detailed arguments on whether an agreement which contains an arbitration clause has or has not been novated cannot possibly be decided in exercise of a limited prima facie review as to whether an arbitration agreement exists between the parties. Also, this case does not fall within the category of cases which ousts arbitration altogether, such as matters which are in rem proceedings or cases which, without doubt, concern minors, lunatics or other persons incompetent to contract. There is nothing vexatious or frivolous in the plea taken by the Appellant. On the contrary, a Section 11 court would refer the matter when contentions relating to non-arbitrability are plainly arguable, or when facts are contested. The court cannot, at this stage, enter into a mini trial or elaborate review of the facts and law which would usurp the jurisdiction of the arbitral tribunal. 10. The impugned judgment was wholly incorrect in deciding that the plea of doctrine of kompetenz-kompetenz and reliance on Section 11(6A) of the 1996 Act, as expounded in Duro Felguera (supra) and Mayavati Trading (supra) were not applicable to the case in hand. Apart from going into a detailed consideration of the MoU and the SHA, which is exclusively within the jurisdiction of the arbitral tribunal, the learned Single Judge, while considering clause 28 of the SHA to arrive at the finding that any kind of agreement as detailed in clause 28.2 between the parties shall stand superseded, does not even refer to clause 28.1. No consideration has been given to the separate and distinct subject matter of the MoU and the SHA. Also, Kishorilal Gupta (supra) and Damodar Valley Corporation (supra) are judgments which deal with novation in the context of the Arbitration Act, 1940, which had a scheme completely different from the scheme contained in Section 16 read with Section 11(6A) of the 1996 Act. | 1[ds]6. By virtue of the Arbitration and Conciliation (Amendment) Act, 2015 [2015 Amendment Act], by which Section 11(6A) was introduced, the earlier position as to the scope of the powers of a court under Section 11, while appointing an arbitrator, are now narrowed to viewing whether an arbitration agreement exists between parties. In a gradual evolution of the law on the subject, the judgments in Duro Felguera (supra) and Mayavati Trading (supra) were explained in some detail in a three-Judge Bench decision in Vidya Drolia v. Durga Trading Corporation, (2021) 2 SCC 1 [Vidya Drolia]. So far as the facts of the present case are concerned, it is important to extract paragraphs 127 to 130 of Vidya Drolia (supra), which deal with the judgments in Kishorilal Gupta (supra) and Damodar Valley Corporation (supra), both of which have been heavily relied upon by the learned Single Judge in the impugned judgment, as follows:127. An interesting and relevant exposition, when assertions claiming repudiation, rescission or accord and satisfaction are made by a party opposing reference, is to be found in Damodar Valley Corpn. v. K.K. Kar [Damodar Valley Corpn. v. K.K. Kar, (1974) 1 SCC 141] , which had referred to an earlier judgment of this Court in Union of India v. Kishorilal Gupta & Bros. [Union of India v. Kishorilal Gupta & Bros., AIR 1959 SC 1362 ] to observe: (Damodar Valley Corpn. case [Damodar Valley Corpn. v. K.K. Kar, (1974) 1 SCC 141] , SCC pp. 147-48, para 11)11. After a review of the relevant case law, Subba Rao, J., as he then was, speaking for the majority enunciated the following principles: (Kishorilal Gupta & Bros. case [Union of India v. Kishorilal Gupta & Bros., AIR 1959 SC 1362 ], AIR p. 1370, para 10)(1) An arbitration clause is a collateral term of a contract as distinguished from its substantive terms; but nonetheless it is an integral part of it;(2) however comprehensive the terms of an arbitration clause may be, the existence of the contract is a necessary condition for its operation; it perishes with the contract; (3) the contract may be non est in the sense that it never came legally into existence or it was void ab initio; (4) though the contract was validly executed, the parties may put an end to it as if it had never existed and substitute a new contract for it solely governing their rights and liabilities thereunder; (5) in the former case, if the original contract has no legal existence, the arbitration clause also cannot operate, for along with the original contract, it is also void; in the latter case, as the original contract is extinguished by the substituted one, the arbitration clause of the original contract perishes with it; and (6) between the two falls many categories of disputes in connection with a contract, such as the question of repudiation, frustration, breach, etc. In those cases it is the performance of the contract that has come to an end, but the contract is still in existence for certain purposes in respect of disputes arising under it or in connection with it. As the contract subsists for certain purposes, the arbitration clause operates in respect of these purposes.In those cases, as we have stated earlier, it is the performance of the contract that has come to an end but the contract is still in existence for certain purposes in respect of disputes arising under it or in connection with it. We think as the contract subsists for certain purposes, the arbitration clause operates in respect of these purposes.128. Reference in Damodar Valley Corpn. case [Damodar Valley Corpn. v. K.K. Kar, (1974) 1 SCC 141] was also made to the minority judgment of Sarkar, J. in Kishorilal Gupta & Bros. [Union of India v. Kishorilal Gupta & Bros., AIR 1959 SC 1362 ] to observe that he had only disagreed with the majority on the effect of settlement on the arbitration clause, as he had held that arbitration clause did survive to settle the dispute as to whether there was or was not an accord and satisfaction. It was further observed that this principle laid down by Sarkar, J. that accord and satisfaction does not put an end to the arbitration clause, was not disagreed to by the majority. On the other hand, proposition (6) seems to be laying the weight on to the views of Sarkar, J. These decisions were under the Arbitration Act, 1940. The Arbitration Act specifically incorporates principles of separation and competence-competence and empowers the Arbitral Tribunal to rule on its own jurisdiction.129. Principles of competence-competence have positive and negative connotations. As a positive implication, the Arbitral Tribunals are declared competent and authorised by law to rule as to their jurisdiction and decide non-arbitrability questions. In case of expressed negative effect, the statute would govern and should be followed. Implied negative effect curtails and constrains interference by the court at the referral stage by necessary implication in order to allow the Arbitral Tribunal to rule as to their jurisdiction and decide non-arbitrability questions. As per the negative effect, courts at the referral stage are not to decide on merits, except when permitted by the legislation either expressly or by necessary implication, such questions of non-arbitrability. Such prioritisation of the Arbitral Tribunal over the courts can be partial and limited when the legislation provides for some or restricted scrutiny at the first look referral stage. We would, therefore, examine the principles of competence-competence with reference to the legislation, that is, the Arbitration Act.130. Section 16(1) of the Arbitration Act accepts and empowers the Arbitral Tribunal to rule on its own jurisdiction including a ruling on the objections, with respect to all aspects of non- arbitrability including validity of the arbitration agreement. A party opposing arbitration, as per sub-section (2), should raise the objection to jurisdiction of the tribunal before the Arbitral Tribunal, not later than the submission of statement of defence. However, participation in the appointment procedure or appointing an arbitrator would not preclude and prejudice any party from raising an objection to the jurisdiction. Obviously, the intent is to curtail delay and expedite appointment of the Arbitral Tribunal. The clause also indirectly accepts that appointment of an arbitrator is different from the issue and question of jurisdiction and non-arbitrability. As per sub-section (3), any objection that the Arbitral Tribunal is exceeding the scope of its authority should be raised as soon as the matter arises. However, the Arbitral Tribunal, as per sub-section (4), is empowered to admit a plea regarding lack of jurisdiction beyond the periods specified in sub-sections (2) and (3) if it considers that the delay is justified. As per the mandate of sub-section (5) when objections to the jurisdiction under sub-sections (2) and (3) are rejected, the Arbitral Tribunal can continue with the proceedings and pass the arbitration award. A party aggrieved is at liberty to file an application for setting aside such arbitral award under Section 34 of the Arbitration Act. Sub-section (3) to Section 8 in specific terms permits an Arbitral Tribunal to continue with the arbitration proceeding and make an award, even when an application under sub-section (1) to Section 8 is pending consideration of the court/forum. Therefore, pendency of the judicial proceedings even before the court is not by itself a bar for the Arbitral Tribunal to proceed and make an award. Whether the court should stay arbitral proceedings or appropriate deference by the Arbitral Tribunal are distinctly different aspects and not for us to elaborate in the present reference.Again, insofar as the facts of the present case are concerned, paragraph 148 of the aforesaid judgment is apposite and states as follows:148. Section 43(1) of the Arbitration Act states that the Limitation Act, 1963 shall apply to arbitrations as it applies to court proceedings. Sub-section (2) states that for the purposes of the Arbitration Act and Limitation Act, arbitration shall be deemed to have commenced on the date referred to in Section 21. Limitation law is procedural and normally disputes, being factual, would be for the arbitrator to decide guided by the facts found and the law applicable. The court at the referral stage can interfere only when it is manifest that the claims are ex facie time-barred and dead, or there is no subsisting dispute. All other cases should be referred to the Arbitral Tribunal for decision on merits. Similar would be the position in case of disputed no- claim certificate or defence on the plea of novation and accord and satisfaction. As observed in Premium Nafta Products Ltd. [Fili Shipping Co. Ltd. v. Premium Nafta Products Ltd., 2007 UKHL 40 : 2007 Bus LR 1719 (HL)], it is not to be expected that commercial men while entering transactions inter se would knowingly create a system which would require that the court should first decide whether the contract should be rectified or avoided or rescinded, as the case may be, and then if the contract is held to be valid, it would require the arbitrator to resolve the issues that have arisen.7. A recent judgment, Pravin Electricals Pvt. Ltd. v. Galaxy Infra and Engineering Pvt. Ltd., 2021 SCC OnLine SC 190, referred in detail to Vidya Drolia (supra) in paragraphs 15 to 18 as follows:15. Dealing with prima facie examination under Section 8, as amended, the Court then held [Vidya Drolia v. Durga Trading Corporation, (2021) 2 SCC 1] :134. Prima facie examination is not full review but a primary first review to weed out manifestly and ex facie non-existent and invalid arbitration agreements and non-arbitrable disputes. The prima facie review at the reference stage is to cut the deadwood and trim off the side branches in straightforward cases where dismissal is barefaced and pellucid and when on the facts and law the litigation must stop at the first stage. Only when the court is certain that no valid arbitration agreement exists or the disputes/subject-matter are not arbitrable, the application under Section 8 would be rejected. At this stage, the court should not get lost in thickets and decide debatable questions of facts. Referral proceedings are preliminary and summary and not a mini trial. This necessarily reflects on the nature of the jurisdiction exercised by the court and in this context, the observations of B.N. Srikrishna, J. of plainly arguable case in Shin-Etsu Chemical Co. Ltd. [Shin- Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd., (2005) 7 SCC 234] are of importance and relevance. Similar views are expressed by this Court in Vimal Kishor Shah [Vimal Kishor Shah v. Jayesh Dinesh Shah, (2016) 8 SCC 788 : (2016) 4 SCC (Civ) 303] wherein the test applied at the pre-arbitration stage was whether there is a good arguable case for the existence of an arbitration agreement.16. The parameters of review under Sections 8 and 11 were then laid down thus:138. In the Indian context, we would respectfully adopt the three categories in Boghara Polyfab (P) Ltd. [National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd., (2009) 1 SCC 267 : (2009) 1 SCC (Civ) 117] The first category of issues, namely, whether the party has approached the appropriate High Court, whether there is an arbitration agreement and whether the party who has applied for reference is party to such agreement would be subject to more thorough examination in comparison to the second and third categories/issues which are presumptively, save in exceptional cases, for the arbitrator to decide. In the first category, we would add and include the question or issue relating to whether the cause of action relates to action in personam or rem; whether the subject-matter of the dispute affects third-party rights, have erga omnes effect, requires centralised adjudication; whether the subject-matter relates to inalienable sovereign and public interest functions of the State; and whether the subject-matter of dispute is expressly or by necessary implication non-arbitrable as per mandatory statute(s). Such questions arise rarely and, when they arise, are on most occasions questions of law. On the other hand, issues relating to contract formation, existence, validity and non-arbitrability would be connected and intertwined with the issues underlying the merits of the respective disputes/claims. They would be factual and disputed and for the Arbitral Tribunal to decide.139. We would not like to be too prescriptive, albeit observe that the court may for legitimate reasons, to prevent wastage of public and private resources, can exercise judicial discretion to conduct an intense yet summary prima facie review while remaining conscious that it is to assist the arbitration procedure and not usurp jurisdiction of the Arbitral Tribunal. Undertaking a detailed full review or a long-drawn review at the referral stage would obstruct and cause delay undermining the integrity and efficacy of arbitration as a dispute resolution mechanism. Conversely, if the court becomes too reluctant to intervene, it may undermine effectiveness of both the arbitration and the court. There are certain cases where the prima facie examination may require a deeper consideration. The courts challenge is to find the right amount of and the context when it would examine the prima facie case or exercise restraint. The legal order needs a right balance between avoiding arbitration obstructing tactics at referral stage and protecting parties from being forced to arbitrate when the matter is clearly non- arbitrable. [Ozlem Susler, The English Approach to Competence-Competence Pepperdine Dispute Resolution Law Journal, 2013, Vol. 13.]140. Accordingly, when it appears that prima facie review would be inconclusive, or on consideration inadequate as it requires detailed examination, the matter should be left for final determination by the Arbitral Tribunal selected by the parties by consent. The underlying rationale being not to delay or defer and to discourage parties from using referral proceeding as a ruse to delay and obstruct. In such cases a full review by the courts at this stage would encroach on the jurisdiction of the Arbitral Tribunal and violate the legislative scheme allocating jurisdiction between the courts and the Arbitral Tribunal. Centralisation of litigation with the Arbitral Tribunal as the primary and first adjudicator is beneficent as it helps in quicker and efficient resolution of disputes.17. The Court then examined the meaning of the expression existence which occurs in Section 11(6A) and summed up its discussion as follows:146. We now proceed to examine the question, whether the word existence in Section 11 merely refers to contract formation (whether there is an arbitration agreement) and excludes the question of enforcement (validity) and therefore the latter falls outside the jurisdiction of the court at the referral stage. On jurisprudentially and textualism it is possible to differentiate between existence of an arbitration agreement and validity of an arbitration agreement.Such interpretation can draw supportfrom the plain meaning of the word existence. However, it is equally possible, jurisprudentially and on contextualism, to hold that an agreement has no existence if it is not enforceable and not binding. Existence of an arbitration agreement presupposes a valid agreement which would be enforced by the court by relegating the parties to arbitration. Legalistic and plain meaning interpretation would be contrary to the contextual background including the definition clause and would result in unpalatable consequences. A reasonable and just interpretation of existence requires understanding the context, the purpose and the relevant legal norms applicable for a binding and enforceable arbitration agreement. An agreement evidenced in writing has no meaning unless the parties can be compelled to adhere and abide by the terms. A party cannot sue and claim rights based on an unenforceable document. Thus, there are good reasons to hold that an arbitration agreement exists only when it is valid and legal. A void and unenforceable understanding is no agreement to do anything. Existence of an arbitration agreement means an arbitration agreement that meets and satisfies the statutory requirements of both the Arbitration Act and the Contract Act and when it is enforceable in law.147. We would proceed to elaborate and give further reasons:147.1. In Garware Wall Ropes Ltd. [Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engg. Ltd., (2019) 9 SCC 209 : (2019) 4 SCC (Civ) 324], this Court had examined the question of stamp duty in an underlying contract with an arbitration clause and in the context had drawn a distinction between the first and second part of Section 7(2) of the Arbitration Act, albeit the observations made and quoted above with reference to existence and validity of the arbitration agreement being apposite and extremely important, we would repeat the same by reproducing para 29 thereof: (SCC p. 238)29. This judgment in Hyundai Engg. Case [United India Insurance Co. Ltd. v. Hyundai Engg. & Construction Co. Ltd., (2018) 17 SCC 607 : (2019) 2 SCC (Civ) 530] is important in that what was specifically under consideration was an arbitration clause which would get activated only if an insurer admits or accepts liability. Since on facts it was found that the insurer repudiated the claim, though an arbitration clause did exist, so to speak, in the policy, it would not exist in law, as was held in that judgment, when one important fact is introduced, namely, that the insurer has not admitted or accepted liability. Likewise, in the facts of the present case, it is clear that the arbitration clause that is contained in the sub- contract would not exist as a matter of law until the sub-contract is duly stamped, as has been held by us above. The argument that Section 11(6-A) deals with existence, as opposed to Section 8, Section 16 and Section 45, which deal with validity of an arbitration agreement is answered by this Courts understanding of the expression existence in Hyundai Engg. case [United India Insurance Co. Ltd. v. Hyundai Engg. & Construction Co. Ltd., (2018) 17 SCC 607 : (2019) 2 SCC (Civ) 530] , as followed by us.Existence and validity are intertwined, and arbitration agreement does not exist if it is illegal or does not satisfy mandatory legal requirements. Invalid agreement is no agreement.147.2. The court at the reference stage exercises judicial powers. Examination, as an ordinary expression in common parlance, refers to an act of looking or considering something carefully in order to discover something (as per Cambridge Dictionary). It requires the person to inspect closely, to test the condition of, or to inquire into carefully (as per Merriam- Webster Dictionary). It would be rather odd for the court to hold and say that the arbitration agreement exists, though ex facie and manifestly the arbitration agreement is invalid in law and the dispute in question is non-arbitrable. The court is not powerless and would not act beyond jurisdiction, if it rejects an application for reference, when the arbitration clause is admittedly or without doubt is with a minor, lunatic or the only claim seeks a probate of a will.147.3. Most scholars and jurists accept and agree that the existence and validity of an arbitration agreement are the same. Even Stavros Brekoulakis accepts that validity, in terms of substantive and formal validity, are questions of contract and hence for the court to examine.147.4. Most jurisdictions accept and require prima facie review by the court on non-arbitrability aspects at the referral stage.147.5. Sections 8 and 11 of the Arbitration Act are complementary provisions as was held in Patel Engg. Ltd. [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618] . The object and purpose behind the two provisions is identical to compel and force parties to abide by their contractual understanding. This being so, the two provisions should be read as laying down similar standard and not as laying down different and separate parameters. Section 11 does not prescribe any standard of judicial review by the court for determining whether an arbitration agreement is in existence. Section 8 states that the judicial review at the stage of reference is prima facie and not final. Prima facie standard equally applies when the power of judicial review is exercised by the court under Section 11 of the Arbitration Act. Therefore, we can read the mandate of valid arbitration agreement in Section 8 into mandate of Section 11, that is, existence of an arbitration agreement.147.6. Exercise of power of prima facie judicial review of existence as including validity is justified as a court is the first forum that examines and decides the request for the referral. Absolute hands off approach would be counterproductive and harm arbitration, as an alternative dispute resolution mechanism. Limited, yet effective intervention is acceptable as it does not obstruct but effectuates arbitration.147.7. Exercise of the limited prima facie review does not in any way interfere with the principle of competence-competence and separation as to obstruct arbitration proceedings but ensures that vexatious and frivolous matters get over at the initial stage.147.8. Exercise of prima facie power of judicial review as to the validity of the arbitration agreement would save costs and check harassment of objecting parties when there is clearly no justification and a good reason not to accept plea of non-arbitrability. In Subrata Roy Sahara v. Union of India [Subrata Roy Sahara v. Union of India, (2014) 8 SCC 470 : (2014) 4 SCC (Civ) 424 : (2014) 3 SCC (Cri) 712] , this Court has observed: (SCC p. 642, para 191)191. The Indian judicial system is grossly afflicted with frivolous litigation. Ways and means need to be evolved to deter litigants from their compulsive obsession towards senseless and ill-considered claims. One needs to keep in mind that in the process of litigation, there is an innocent sufferer on the other side of every irresponsible and senseless claim. He suffers long-drawn anxious periods of nervousness and restlessness, whilst the litigation is pending without any fault on his part. He pays for the litigation from out of his savings (or out of his borrowings) worrying that the other side may trick him into defeat for no fault of his. He spends invaluable time briefing counsel and preparing them for his claim. Time which he should have spent at work, or with his family, is lost, for no fault of his. Should a litigant not be compensated for what he has lost for no fault? The suggestion to the legislature is that a litigant who has succeeded must be compensated by the one who has lost. The suggestion to the legislature is to formulate a mechanism that anyone who initiates and continues a litigation senselessly pays for the same. It is suggested that the legislature should consider the introduction of a Code of Compulsory Costs.147.9. Even in Duro Felguera [Duro Felguera, S.A.v. Gangavaram Port Ltd., (2017) 9 SCC 729 : (2017) 4 SCC (Civ) 764], Kurian Joseph, J., in para 52, had referred to Section 7(5) and thereafter in para 53 referred to a judgment of this Court in M.R. Engineers & Contractors (P) Ltd. v. Som Datt Builders Ltd. [M.R. Engineers & Contractors (P) Ltd. v. Som Datt Builders Ltd., (2009) 7 SCC 696 : (2009) 3 SCC (Civ) 271] to observe that the analysis in the said case supports the final conclusion that the memorandum of understanding in the said case did not incorporate an arbitration clause. Thereafter, reference was specifically made to Patel Engg. Ltd. [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618] and Boghara Polyfab (P) Ltd. [National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd., (2009) 1 SCC 267 : (2009) 1 SCC (Civ) 117] to observe that the legislative policy is essential to minimise courts interference at the pre- arbitral stage and this was the intention of sub-section (6) to Section 11 of the Arbitration Act. Para 48 in Duro Felguera [Duro Felguera, S.A. v. Gangavaram Port Ltd., (2017) 9 SCC 729 : (2017) 4 SCC (Civ) 764] specifically states that the resolution has to exist in the arbitration agreement, and it is for the court to see if the agreement contains a clause which provides for arbitration of disputes which have arisen between the parties. Para 59 is more restrictive and requires the court to see whether an arbitration agreement exists — nothing more, nothing less. Read with the other findings, it would be appropriate to read the two paragraphs as laying down the legal ratio that the court is required to see if the underlying contract contains an arbitration clause for arbitration of the disputes which have arisen between the parties — nothing more, nothing less. Reference to decisions in Patel Engg. Ltd. [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618] and Boghara Polyfab (P) Ltd. [National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd., (2009) 1 SCC 267 : (2009) 1 SCC (Civ) 117] was to highlight that at the reference stage, post the amendments vide Act 3 of 2016, the court would not go into and finally decide different aspects that were highlighted in the two decisions.147.10. In addition to Garware Wall Ropes Ltd. case [Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engg. Ltd., (2019) 9 SCC 209 : (2019) 4 SCC (Civ) 324] , this Court in Narbheram Power & Steel (P) Ltd. [Oriental Insurance Co. Ltd. v. Narbheram Power & Steel (P) Ltd., (2018) 6 SCC 534 : (2018) 3 SCC (Civ) 484] and Hyundai Engg. & Construction Co. Ltd. [United India Insurance Co. Ltd. v. Hyundai Engg. & Construction Co. Ltd., (2018) 17 SCC 607 : (2019) 2 SCC (Civ) 530] , both decisions of three Judges, has rejected the application for reference in the insurance contracts holding that the claim was beyond and not covered by the arbitration agreement. The Court felt that the legal position was beyond doubt as the scope of the arbitration clause was fully covered by the dictum in Vulcan Insurance Co. Ltd. [Vulcan Insurance Co. Ltd. v. Maharaj Singh, (1976) 1 SCC 943] Similarly, in PSA Mumbai Investments Pte. Ltd. [PSA Mumbai Investments Pte. Ltd. v. Jawaharlal Nehru Port Trust, (2018) 10 SCC 525 : (2019) 1 SCC (Civ) 1] , this Court at the referral stage came to the conclusion that the arbitration clause would not be applicable and govern the disputes. Accordingly, the reference to the Arbitral Tribunal was set aside leaving the respondent to pursue its claim before an appropriate forum.147.11. The interpretation appropriately balances the allocation of the decision-making authority between the court at the referral stage and the arbitrators primary jurisdiction to decide disputes on merits. The court as the judicial forum of the first instance can exercise prima facie test jurisdiction to screen and knock down ex facie meritless, frivolous and dishonest litigation. Limited jurisdiction of the courts ensures expeditious, alacritous and efficient disposal when required at the referral stage.18. The Bench finally concluded:153. Accordingly, we hold that the expression existence of an arbitration agreement in Section 11 of the Arbitration Act, would include aspect of validity of an arbitration agreement, albeit the court at the referral stage would apply the prima facie test on the basis of principles set out in this judgment. In cases of debatable and disputable facts, and good reasonable arguable case, etc., the court would force the parties to abide by the arbitration agreement as the Arbitral Tribunal has primary jurisdiction and authority to decide the disputes including the question of jurisdiction and non-arbitrability.154. Discussion under the heading Who Decides Arbitrability? can be crystallised as under:154.1. Ratio of the decision in Patel Engg. Ltd. [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618] on the scope of judicial review by the court while deciding an application under Sections 8 or 11 of the Arbitration Act, post the amendments by Act 3 of 2016 (with retrospective effect from 23-10-2015) and even post the amendments vide Act 33 of 2019 (with effect from 9-8-2019), is no longer applicable.154.2. Scope of judicial review and jurisdiction of the court under Sections 8 and 11 of the Arbitration Act is identical but extremely limited and restricted.154.3. The general rule and principle, in view of the legislative mandate clear from Act 3 of 2016 and Act 33 of 2019, and the principle of severability and competence-competence, is that the Arbitral Tribunal is the preferred first authority to determine and decide all questions of non-arbitrability. The court has been conferred power of second look on aspects of non- arbitrability post the award in terms of sub-clauses (i), (ii) or (iv) of Section 34(2)(a) or sub-clause (i) of Section 34(2)(b) of the Arbitration Act.154.4. Rarely as a demurrer the court may interfere at Section 8 or 11 stage when it is manifestly and ex facie certain that the arbitration agreement is non- existent, invalid or the disputes are non-arbitrable, though the nature and facet of non-arbitrability would, to some extent, determine the level and nature of judicial scrutiny. The restricted and limited review is to check and protect parties from being forced to arbitrate when the matter is demonstrably non-arbitrable and to cut off the deadwood. The court by default would refer the matter when contentions relating to non- arbitrability are plainly arguable; when consideration in summary proceedings would be insufficient and inconclusive; when facts are contested; when the party opposing arbitration adopts delaying tactics or impairs conduct of arbitration proceedings. This is not the stage for the court to enter into a mini trial or elaborate review so as to usurp the jurisdiction of the Arbitral Tribunal but to affirm and uphold integrity and efficacy of arbitration as an alternative dispute resolution mechanism.155. Reference is, accordingly, answered.The Court then concluded, on the facts of that case, that it would be unsafe to conclude one way or the other that an arbitration agreement exists between the parties on a prima facie review of facts of that case, and that a deeper consideration must be left to an arbitrator, who is to examine the documentary and oral evidence and then arrive at a conclusion.9. Judged by the aforesaid tests, it is obvious that whether the MoU has been novated by the SHA dated 12.04.1996 requires a detailed consideration of the clauses of the two Agreements, together with the surrounding circumstances in which these Agreements were entered into, and a full consideration of the law on the subject. None of this can be done given the limited jurisdiction of a court under Section 11 of the 1996 Act. As has been held in paragraph 148 of Vidya Drolia (supra), detailed arguments on whether an agreement which contains an arbitration clause has or has not been novated cannot possibly be decided in exercise of a limited prima facie review as to whether an arbitration agreement exists between the parties. Also, this case does not fall within the category of cases which ousts arbitration altogether, such as matters which are in rem proceedings or cases which, without doubt, concern minors, lunatics or other persons incompetent to contract. There is nothing vexatious or frivolous in the plea taken by the Appellant. On the contrary, a Section 11 court would refer the matter when contentions relating to non-arbitrability are plainly arguable, or when facts are contested. The court cannot, at this stage, enter into a mini trial or elaborate review of the facts and law which would usurp the jurisdiction of the arbitral tribunal.10. The impugned judgment was wholly incorrect in deciding that the plea of doctrine of kompetenz-kompetenz and reliance on Section 11(6A) of the 1996 Act, as expounded in Duro Felguera (supra) and Mayavati Trading (supra) were not applicable to the case in hand. Apart from going into a detailed consideration of the MoU and the SHA, which is exclusively within the jurisdiction of the arbitral tribunal, the learned Single Judge, while considering clause 28 of the SHA to arrive at the finding that any kind of agreement as detailed in clause 28.2 between the parties shall stand superseded, does not even refer to clause 28.1. No consideration has been given to the separate and distinct subject matter of the MoU and the SHA. Also, Kishorilal Gupta (supra) and Damodar Valley Corporation (supra) are judgments which deal with novation in the context of the Arbitration Act, 1940, which had a scheme completely different from the scheme contained in Section 16 read with Section 11(6A) of the 1996 Act. | 1 | 13,154 | 6,151 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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the Arbitration Act, post the amendments by Act 3 of 2016 (with retrospective effect from 23-10-2015) and even post the amendments vide Act 33 of 2019 (with effect from 9-8-2019), is no longer applicable. 154.2. Scope of judicial review and jurisdiction of the court under Sections 8 and 11 of the Arbitration Act is identical but extremely limited and restricted. 154.3. The general rule and principle, in view of the legislative mandate clear from Act 3 of 2016 and Act 33 of 2019, and the principle of severability and competence-competence, is that the Arbitral Tribunal is the preferred first authority to determine and decide all questions of non-arbitrability. The court has been conferred power of second look on aspects of non- arbitrability post the award in terms of sub-clauses (i), (ii) or (iv) of Section 34(2)(a) or sub-clause (i) of Section 34(2)(b) of the Arbitration Act. 154.4. Rarely as a demurrer the court may interfere at Section 8 or 11 stage when it is manifestly and ex facie certain that the arbitration agreement is non- existent, invalid or the disputes are non-arbitrable, though the nature and facet of non-arbitrability would, to some extent, determine the level and nature of judicial scrutiny. The restricted and limited review is to check and protect parties from being forced to arbitrate when the matter is demonstrably non-arbitrable and to cut off the deadwood. The court by default would refer the matter when contentions relating to non- arbitrability are plainly arguable; when consideration in summary proceedings would be insufficient and inconclusive; when facts are contested; when the party opposing arbitration adopts delaying tactics or impairs conduct of arbitration proceedings. This is not the stage for the court to enter into a mini trial or elaborate review so as to usurp the jurisdiction of the Arbitral Tribunal but to affirm and uphold integrity and efficacy of arbitration as an alternative dispute resolution mechanism. 155. Reference is, accordingly, answered. The Court then concluded, on the facts of that case, that it would be unsafe to conclude one way or the other that an arbitration agreement exists between the parties on a prima facie review of facts of that case, and that a deeper consideration must be left to an arbitrator, who is to examine the documentary and oral evidence and then arrive at a conclusion. 8. Likewise, in Bharat Sanchar Nigam Ltd. v. Nortel Networks India Pvt. Ltd., 2021 SCC OnLine SC 207, another Division Bench of this Court referred to Vidya Drolia (supra) and concluded: 39. The upshot of the judgment in Vidya Drolia [Vidya Drolia v. Durga Trading Corporation, (2021) 2 SCC 1] is affirmation of the position of law expounded in Duro Felguera [Duro Felguera, S.A. v. Gangavaram Port Ltd., (2017) 9 SCC 729] and Mayavati Trading [Mayavati Trading (P) Ltd. v. Pradyuat Deb Burman, (2019) 8 SCC 714] , which continue to hold the field. It must be understood clearly that Vidya Drolia [Vidya Drolia v. Durga Trading Corporation, (2021) 2 SCC 1] has not resurrected the pre-amendment position on the scope of power as held in SBP & Co. v. Patel Engineering [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618] . It is only in the very limited category of cases, where there is not even a vestige of doubt that the claim is ex facie time- barred, or that the dispute is non-arbitrable, that the court may decline to make the reference. However, if there is even the slightest doubt, the rule is to refer the disputes to arbitration, otherwise it would encroach upon what is essentially a matter to be determined by the tribunal. 9. Judged by the aforesaid tests, it is obvious that whether the MoU has been novated by the SHA dated 12.04.1996 requires a detailed consideration of the clauses of the two Agreements, together with the surrounding circumstances in which these Agreements were entered into, and a full consideration of the law on the subject. None of this can be done given the limited jurisdiction of a court under Section 11 of the 1996 Act. As has been held in paragraph 148 of Vidya Drolia (supra), detailed arguments on whether an agreement which contains an arbitration clause has or has not been novated cannot possibly be decided in exercise of a limited prima facie review as to whether an arbitration agreement exists between the parties. Also, this case does not fall within the category of cases which ousts arbitration altogether, such as matters which are in rem proceedings or cases which, without doubt, concern minors, lunatics or other persons incompetent to contract. There is nothing vexatious or frivolous in the plea taken by the Appellant. On the contrary, a Section 11 court would refer the matter when contentions relating to non-arbitrability are plainly arguable, or when facts are contested. The court cannot, at this stage, enter into a mini trial or elaborate review of the facts and law which would usurp the jurisdiction of the arbitral tribunal. 10. The impugned judgment was wholly incorrect in deciding that the plea of doctrine of kompetenz-kompetenz and reliance on Section 11(6A) of the 1996 Act, as expounded in Duro Felguera (supra) and Mayavati Trading (supra) were not applicable to the case in hand. Apart from going into a detailed consideration of the MoU and the SHA, which is exclusively within the jurisdiction of the arbitral tribunal, the learned Single Judge, while considering clause 28 of the SHA to arrive at the finding that any kind of agreement as detailed in clause 28.2 between the parties shall stand superseded, does not even refer to clause 28.1. No consideration has been given to the separate and distinct subject matter of the MoU and the SHA. Also, Kishorilal Gupta (supra) and Damodar Valley Corporation (supra) are judgments which deal with novation in the context of the Arbitration Act, 1940, which had a scheme completely different from the scheme contained in Section 16 read with Section 11(6A) of the 1996 Act.
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1
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claim before an appropriate forum.147.11. The interpretation appropriately balances the allocation of the decision-making authority between the court at the referral stage and the arbitrators primary jurisdiction to decide disputes on merits. The court as the judicial forum of the first instance can exercise prima facie test jurisdiction to screen and knock down ex facie meritless, frivolous and dishonest litigation. Limited jurisdiction of the courts ensures expeditious, alacritous and efficient disposal when required at the referral stage.18. The Bench finally concluded:153. Accordingly, we hold that the expression existence of an arbitration agreement in Section 11 of the Arbitration Act, would include aspect of validity of an arbitration agreement, albeit the court at the referral stage would apply the prima facie test on the basis of principles set out in this judgment. In cases of debatable and disputable facts, and good reasonable arguable case, etc., the court would force the parties to abide by the arbitration agreement as the Arbitral Tribunal has primary jurisdiction and authority to decide the disputes including the question of jurisdiction and non-arbitrability.154. Discussion under the heading Who Decides Arbitrability? can be crystallised as under:154.1. Ratio of the decision in Patel Engg. Ltd. [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618] on the scope of judicial review by the court while deciding an application under Sections 8 or 11 of the Arbitration Act, post the amendments by Act 3 of 2016 (with retrospective effect from 23-10-2015) and even post the amendments vide Act 33 of 2019 (with effect from 9-8-2019), is no longer applicable.154.2. Scope of judicial review and jurisdiction of the court under Sections 8 and 11 of the Arbitration Act is identical but extremely limited and restricted.154.3. The general rule and principle, in view of the legislative mandate clear from Act 3 of 2016 and Act 33 of 2019, and the principle of severability and competence-competence, is that the Arbitral Tribunal is the preferred first authority to determine and decide all questions of non-arbitrability. The court has been conferred power of second look on aspects of non- arbitrability post the award in terms of sub-clauses (i), (ii) or (iv) of Section 34(2)(a) or sub-clause (i) of Section 34(2)(b) of the Arbitration Act.154.4. Rarely as a demurrer the court may interfere at Section 8 or 11 stage when it is manifestly and ex facie certain that the arbitration agreement is non- existent, invalid or the disputes are non-arbitrable, though the nature and facet of non-arbitrability would, to some extent, determine the level and nature of judicial scrutiny. The restricted and limited review is to check and protect parties from being forced to arbitrate when the matter is demonstrably non-arbitrable and to cut off the deadwood. The court by default would refer the matter when contentions relating to non- arbitrability are plainly arguable; when consideration in summary proceedings would be insufficient and inconclusive; when facts are contested; when the party opposing arbitration adopts delaying tactics or impairs conduct of arbitration proceedings. This is not the stage for the court to enter into a mini trial or elaborate review so as to usurp the jurisdiction of the Arbitral Tribunal but to affirm and uphold integrity and efficacy of arbitration as an alternative dispute resolution mechanism.155. Reference is, accordingly, answered.The Court then concluded, on the facts of that case, that it would be unsafe to conclude one way or the other that an arbitration agreement exists between the parties on a prima facie review of facts of that case, and that a deeper consideration must be left to an arbitrator, who is to examine the documentary and oral evidence and then arrive at a conclusion.9. Judged by the aforesaid tests, it is obvious that whether the MoU has been novated by the SHA dated 12.04.1996 requires a detailed consideration of the clauses of the two Agreements, together with the surrounding circumstances in which these Agreements were entered into, and a full consideration of the law on the subject. None of this can be done given the limited jurisdiction of a court under Section 11 of the 1996 Act. As has been held in paragraph 148 of Vidya Drolia (supra), detailed arguments on whether an agreement which contains an arbitration clause has or has not been novated cannot possibly be decided in exercise of a limited prima facie review as to whether an arbitration agreement exists between the parties. Also, this case does not fall within the category of cases which ousts arbitration altogether, such as matters which are in rem proceedings or cases which, without doubt, concern minors, lunatics or other persons incompetent to contract. There is nothing vexatious or frivolous in the plea taken by the Appellant. On the contrary, a Section 11 court would refer the matter when contentions relating to non-arbitrability are plainly arguable, or when facts are contested. The court cannot, at this stage, enter into a mini trial or elaborate review of the facts and law which would usurp the jurisdiction of the arbitral tribunal.10. The impugned judgment was wholly incorrect in deciding that the plea of doctrine of kompetenz-kompetenz and reliance on Section 11(6A) of the 1996 Act, as expounded in Duro Felguera (supra) and Mayavati Trading (supra) were not applicable to the case in hand. Apart from going into a detailed consideration of the MoU and the SHA, which is exclusively within the jurisdiction of the arbitral tribunal, the learned Single Judge, while considering clause 28 of the SHA to arrive at the finding that any kind of agreement as detailed in clause 28.2 between the parties shall stand superseded, does not even refer to clause 28.1. No consideration has been given to the separate and distinct subject matter of the MoU and the SHA. Also, Kishorilal Gupta (supra) and Damodar Valley Corporation (supra) are judgments which deal with novation in the context of the Arbitration Act, 1940, which had a scheme completely different from the scheme contained in Section 16 read with Section 11(6A) of the 1996 Act.
|
S. B. Noronah Vs. Prem Kumari Khanna | a residence”. If it is let out for a commercial purpose, Section 21 will not apply, whether the ritual of a sanction under that provision has been gone through or not. Thirdly, the Controller’s permission is obligatory where he specifices the particular period for which he gives permission and further qualifies the permission for use as a residence. The Controller exercises an important regulatory function on behalf of the community. The fact that a landlord and a potential tenant together apply. setting out formal ingredients of Section 21, does not relieve the Controller from being vigilant to inquire and satisfy himself about the requisites of the landlord’s non-requirement “for a particular period” and the letting itself being as a residence”. A fraud on the statute cannot be permitted especially because of the grave mischief that may be perpetrated in such event.17. It is easy to envisage the terrible blow to the rent control law if Section 21 were freely permitted to subvert the scheme of Section 14. Every landlord will insist on a tenant going through the formal exercise of Section 21, making ideal averments in terms of that Section. The consequence will be that both the Civil Procedure Code which prescribe suits for recovery of possession and the Delhi Rent Control Act which prescribes grounds for eviction will be eclipsed by the pervasive operation of Section 21. Neither grounds for eviction nor suits for eviction will thereafter be needed, and if the landlord moves the Court for a mere warrant to place the landlord, through the Court process, in vacant posession of the premises he gets it. No court-fee, no decree, no execution petition, no termination of tenancy—wish for possession and the Court is at your command. Such a horrandous situation will be the negation of the rule of law in this area. So it is that we deem it necessary to lay down the law as implied in Section 21.18. When an application under Section 21 is filed by the landlord and/or tenant, the Controller must satisfy himself by such inquiry as he may make, about the compulsive requirements of that provision. If he makes a mindless order, the Court, when challenged at the time of execution, will go into the question as to whether the twin conditions for sanction have really been fulfilled. Of course, there will be a presumption in favour of the sanction being regular, but it will still be open to a party to make out his case that in fact and in truth the conditions which make for a valid sanction were not present. We do not agree with the statement of the law by the Delhi High Court striking a contrary note. In this context, we may make special reference to Kasturi Lal’s case, a decision of the Delhi High Court reported in 1976 RCJ p. 582. It is true as Misra in that case, following earlier decisions has observed that the provisions of Section 21 are designed to meet the problem of shortage of housing in Delhi. If the landlord does not need the premises for a limited period, Section 21 permits him to lease it out during that period. Without the facility of Section 21 the landlord might have preferred to keep the premises vacant, but that does not mean that the law surrenders itself to this landlord and releases him from all conditions. That is why the need for sanction and the mandatory conditions for such sanction are specified in the Section. It is altogether wrong to import the idea that the tenant having taken advantage of induction into the premises pursuant to the permission, he cannot challenge the legality of the permission. As between unequals the law steps in and as against statutes there is no estoppel, especially where collusion and fraud are made out and high purpose is involved.19. The doctrine of estoppel cannot be invoked to render valid a proceeding, which the legislature has, on grounds of public policy, subjected to mandatory conditions which are shown to be absent;“Where a statute, enacted for the benefit of a Section of the public,imposes a duty of a positive kind, the person charged with the performance of the duty cannot by estoppel be prevented from exercising his statutory powers. A petitioner in a divorce suit cannot obtain relief simply because the respondent is estopped from denying the charges, as the Court has a statutory duty to inquire into the truth of a petition” (1)20. It is an old maxim that estoppels are odious, although considerable inroad into this maxim has been made by modern law. Even so, `a judgements obtained by fraud or collusion, even, it seems a judgment of the house of Lords, may be treated as a nullity.” (See Halsbury’s Laws of England, Vol. 16—fourth edition para 1553) the point is that the sanction granted under Section 21, if it has been procured by fraud for or collusion, cannot withstand invalidity because, otherwise, high public policy will be given as hostage to successful collusion.21. Law that non-performs stultifies the rule of law and so it is that we stress the need for strict compliance. Or else, the sanction is non est. Collusion between the strong and the weak cannot confer validity, where the mandatory prescriptions of the law are breached or betrayed. We have said enough to make the point that it is open to the tenant in the present case to plead and prove that the sanction under Section 21 is invalid, and if it is void the executing Court is not debarred from holding so. (1) Halsbury’s Laws of England, Fourth Edition p, 1019 Vol. 16.22. We, therefore, hold on the first poiint that no question of amendment arises in the present case and the application before the Controller did not suffer from any deficiency. On the second point we hold that it is perfectly open to the Controller to examine whether the sanction under Section 21 is a make-believe, vitiated by fraud and Collusion.23. | 0[ds]14. Section 21 is the answer. The law seeks to persuade the owner of permises available for letting for a particular or limited period by giving him the special assurance that the expiry of that period the appointed agency will place the landlord in vacant possession. As stated earlier, the critical need was for residential, not non-residential housing. Therefore, Section 21 confines this special remedy to letting for residential uses only. Parliament had the wholesome fear that if the Section were not controlled by many conditions it might open the flood gates for wholesale circumvention of the rent control legislation by ingenious landlords exploiting the agonising need of houseless denizens.We must notice that Section 21 runs counter to the general scheme and, therefore, must be restricted severaly to its narrow sphere. Secondly, we must place accent only every condition which attracts the Section and if any one of them is absent the Section cannot apply and, therefore, cannot arm the landlord with a resistless eviction process. Thirdly, we must realise that the whole effect of Section 14 can be subverted by ritualistic enforcement of the conditions of sanction under Sce. 21 or mechanical grant of sanction therein. Section 21 overrides Section 14 precisely because it is otherwise hedged in with drastic limitation and safeguards itself against. When an application under Section 21 is filed by the landlord and/or tenant, the Controller must satisfy himself by such inquiry as he may make, about the compulsive requirements of that provision. If he makes a mindless order, the Court, when challenged at the time of execution, will go into the question as to whether the twin conditions for sanction have really been fulfilled. Of course, there will be a presumption in favour of the sanction being regular, but it will still be open to a party to make out his case that in fact and in truth the conditions which make for a valid sanction were not present. We do not agree with the statement of the law by the Delhi High Court striking a contrary note. In this context, we may make special reference to Kasturicase, a decision of the Delhi High Court reported in 1976 RCJ p. 582. It is true as Misra in that case, following earlier decisions has observed that the provisions of Section 21 are designed to meet the problem of shortage of housing in Delhi. If the landlord does not need the premises for a limited period, Section 21 permits him to lease it out during that period. Without the facility of Section 21 the landlord might have preferred to keep the premises vacant, but that does not mean that the law surrenders itself to this landlord and releases him from all conditions. That is why the need for sanction and the mandatory conditions for such sanction are specified in the Section. It is altogether wrong to import the idea that the tenant having taken advantage of induction into the premises pursuant to the permission, he cannot challenge the legality of the permission. As between unequals the law steps in and as against statutes there is no estoppel, especially where collusion and fraud are made out and high purpose is involved.It is an old maxim that estoppels are odious, although considerable inroad into this maxim has been made by modern law. Even so, `a judgements obtained by fraud or collusion, even, it seems a judgment of the house of Lords, may be treated as aLaws of England, Vol. 16—fourth edition para 1553) the point is that the sanction granted under Section 21, if it has been procured by fraud for or collusion, cannot withstand invalidity because, otherwise, high public policy will be given as hostage to successful collusion.21. Law that non-performs stultifies the rule of law and so it is that we stress the need for strict compliance. Or else, the sanction is non est. Collusion between the strong and the weak cannot confer validity, where the mandatory prescriptions of the law are breached or betrayed. We have said enough to make the point that it is open to the tenant in the present case to plead and prove that the sanction under Section 21 is invalid, and if it is void the executing Court is not debarred from holding so.We, therefore, hold on the first poiint that no question of amendment arises in the present case and the application before the Controller did not suffer from any deficiency. On the second point we hold that it is perfectly open to the Controller to examine whether the sanction under Section 21 is a make-believe, vitiated by fraud and Collusion. | 0 | 3,206 | 850 | ### 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:
a residence”. If it is let out for a commercial purpose, Section 21 will not apply, whether the ritual of a sanction under that provision has been gone through or not. Thirdly, the Controller’s permission is obligatory where he specifices the particular period for which he gives permission and further qualifies the permission for use as a residence. The Controller exercises an important regulatory function on behalf of the community. The fact that a landlord and a potential tenant together apply. setting out formal ingredients of Section 21, does not relieve the Controller from being vigilant to inquire and satisfy himself about the requisites of the landlord’s non-requirement “for a particular period” and the letting itself being as a residence”. A fraud on the statute cannot be permitted especially because of the grave mischief that may be perpetrated in such event.17. It is easy to envisage the terrible blow to the rent control law if Section 21 were freely permitted to subvert the scheme of Section 14. Every landlord will insist on a tenant going through the formal exercise of Section 21, making ideal averments in terms of that Section. The consequence will be that both the Civil Procedure Code which prescribe suits for recovery of possession and the Delhi Rent Control Act which prescribes grounds for eviction will be eclipsed by the pervasive operation of Section 21. Neither grounds for eviction nor suits for eviction will thereafter be needed, and if the landlord moves the Court for a mere warrant to place the landlord, through the Court process, in vacant posession of the premises he gets it. No court-fee, no decree, no execution petition, no termination of tenancy—wish for possession and the Court is at your command. Such a horrandous situation will be the negation of the rule of law in this area. So it is that we deem it necessary to lay down the law as implied in Section 21.18. When an application under Section 21 is filed by the landlord and/or tenant, the Controller must satisfy himself by such inquiry as he may make, about the compulsive requirements of that provision. If he makes a mindless order, the Court, when challenged at the time of execution, will go into the question as to whether the twin conditions for sanction have really been fulfilled. Of course, there will be a presumption in favour of the sanction being regular, but it will still be open to a party to make out his case that in fact and in truth the conditions which make for a valid sanction were not present. We do not agree with the statement of the law by the Delhi High Court striking a contrary note. In this context, we may make special reference to Kasturi Lal’s case, a decision of the Delhi High Court reported in 1976 RCJ p. 582. It is true as Misra in that case, following earlier decisions has observed that the provisions of Section 21 are designed to meet the problem of shortage of housing in Delhi. If the landlord does not need the premises for a limited period, Section 21 permits him to lease it out during that period. Without the facility of Section 21 the landlord might have preferred to keep the premises vacant, but that does not mean that the law surrenders itself to this landlord and releases him from all conditions. That is why the need for sanction and the mandatory conditions for such sanction are specified in the Section. It is altogether wrong to import the idea that the tenant having taken advantage of induction into the premises pursuant to the permission, he cannot challenge the legality of the permission. As between unequals the law steps in and as against statutes there is no estoppel, especially where collusion and fraud are made out and high purpose is involved.19. The doctrine of estoppel cannot be invoked to render valid a proceeding, which the legislature has, on grounds of public policy, subjected to mandatory conditions which are shown to be absent;“Where a statute, enacted for the benefit of a Section of the public,imposes a duty of a positive kind, the person charged with the performance of the duty cannot by estoppel be prevented from exercising his statutory powers. A petitioner in a divorce suit cannot obtain relief simply because the respondent is estopped from denying the charges, as the Court has a statutory duty to inquire into the truth of a petition” (1)20. It is an old maxim that estoppels are odious, although considerable inroad into this maxim has been made by modern law. Even so, `a judgements obtained by fraud or collusion, even, it seems a judgment of the house of Lords, may be treated as a nullity.” (See Halsbury’s Laws of England, Vol. 16—fourth edition para 1553) the point is that the sanction granted under Section 21, if it has been procured by fraud for or collusion, cannot withstand invalidity because, otherwise, high public policy will be given as hostage to successful collusion.21. Law that non-performs stultifies the rule of law and so it is that we stress the need for strict compliance. Or else, the sanction is non est. Collusion between the strong and the weak cannot confer validity, where the mandatory prescriptions of the law are breached or betrayed. We have said enough to make the point that it is open to the tenant in the present case to plead and prove that the sanction under Section 21 is invalid, and if it is void the executing Court is not debarred from holding so. (1) Halsbury’s Laws of England, Fourth Edition p, 1019 Vol. 16.22. We, therefore, hold on the first poiint that no question of amendment arises in the present case and the application before the Controller did not suffer from any deficiency. On the second point we hold that it is perfectly open to the Controller to examine whether the sanction under Section 21 is a make-believe, vitiated by fraud and Collusion.23.
### Response:
0
### Explanation:
14. Section 21 is the answer. The law seeks to persuade the owner of permises available for letting for a particular or limited period by giving him the special assurance that the expiry of that period the appointed agency will place the landlord in vacant possession. As stated earlier, the critical need was for residential, not non-residential housing. Therefore, Section 21 confines this special remedy to letting for residential uses only. Parliament had the wholesome fear that if the Section were not controlled by many conditions it might open the flood gates for wholesale circumvention of the rent control legislation by ingenious landlords exploiting the agonising need of houseless denizens.We must notice that Section 21 runs counter to the general scheme and, therefore, must be restricted severaly to its narrow sphere. Secondly, we must place accent only every condition which attracts the Section and if any one of them is absent the Section cannot apply and, therefore, cannot arm the landlord with a resistless eviction process. Thirdly, we must realise that the whole effect of Section 14 can be subverted by ritualistic enforcement of the conditions of sanction under Sce. 21 or mechanical grant of sanction therein. Section 21 overrides Section 14 precisely because it is otherwise hedged in with drastic limitation and safeguards itself against. When an application under Section 21 is filed by the landlord and/or tenant, the Controller must satisfy himself by such inquiry as he may make, about the compulsive requirements of that provision. If he makes a mindless order, the Court, when challenged at the time of execution, will go into the question as to whether the twin conditions for sanction have really been fulfilled. Of course, there will be a presumption in favour of the sanction being regular, but it will still be open to a party to make out his case that in fact and in truth the conditions which make for a valid sanction were not present. We do not agree with the statement of the law by the Delhi High Court striking a contrary note. In this context, we may make special reference to Kasturicase, a decision of the Delhi High Court reported in 1976 RCJ p. 582. It is true as Misra in that case, following earlier decisions has observed that the provisions of Section 21 are designed to meet the problem of shortage of housing in Delhi. If the landlord does not need the premises for a limited period, Section 21 permits him to lease it out during that period. Without the facility of Section 21 the landlord might have preferred to keep the premises vacant, but that does not mean that the law surrenders itself to this landlord and releases him from all conditions. That is why the need for sanction and the mandatory conditions for such sanction are specified in the Section. It is altogether wrong to import the idea that the tenant having taken advantage of induction into the premises pursuant to the permission, he cannot challenge the legality of the permission. As between unequals the law steps in and as against statutes there is no estoppel, especially where collusion and fraud are made out and high purpose is involved.It is an old maxim that estoppels are odious, although considerable inroad into this maxim has been made by modern law. Even so, `a judgements obtained by fraud or collusion, even, it seems a judgment of the house of Lords, may be treated as aLaws of England, Vol. 16—fourth edition para 1553) the point is that the sanction granted under Section 21, if it has been procured by fraud for or collusion, cannot withstand invalidity because, otherwise, high public policy will be given as hostage to successful collusion.21. Law that non-performs stultifies the rule of law and so it is that we stress the need for strict compliance. Or else, the sanction is non est. Collusion between the strong and the weak cannot confer validity, where the mandatory prescriptions of the law are breached or betrayed. We have said enough to make the point that it is open to the tenant in the present case to plead and prove that the sanction under Section 21 is invalid, and if it is void the executing Court is not debarred from holding so.We, therefore, hold on the first poiint that no question of amendment arises in the present case and the application before the Controller did not suffer from any deficiency. On the second point we hold that it is perfectly open to the Controller to examine whether the sanction under Section 21 is a make-believe, vitiated by fraud and Collusion.
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State Of Bihar Vs. Universal Hydrocarbons Co.Ltd. & Anr Etc | expression "coal" within section 14(ia). The relevant extract of the judgment is as under : "It is not disputed that if petroleum coke is covered by clause (i) of section 14 which reads coal including coke in all its forms the State was not competent to levy tax at a rate exceeding the one given in section15(a) of the Central Act. The High Court was of the view that the word coal includes coke in all its forms in clause (i) of section14 of the Central Act and must be taken to mean coke derived from coal. In other words it must be coke which had been derived or acquired from coal by following the usual process of heating or burning. The contention, therefore, or the appellant was negatived that petroleum coke was covered by the aforesaid provision of the Central Act.This decision fully supports the respondent. The fact that calcined petroleum coke is a different commodity is of little consequence, In interpreting the scope of hides and skins which fall under section14(iii) of the Act, this Court in Mahi Traders case held at pages 236-237 of STC; 734-735 of SCC as under : "....... According to him the products purchased and sold are not different even under the classification by way of the dichotomy between raw and dressed hides and skins under the Tamil Nadu General Sales Tax Act. Under the Central Sales Tax Act, the appellant is in a much better position, because all the hides and skins are brought together in one entry. Whether raw or dressed, the product falls under the same entry....... The operations involved in leather manufacture however fall into three groups. Pre-tanning operations include soaking, liming, deliming, bating and pickling, and post-tanning operations are splitting and shaving, neutralising, bleaching, dyeing, fat-liquoring and stuffing, setting out, samming, drying, staking and finishing. These operations bring about chemical changes in the leather substance and influence the physical characteristics of the leather, and different varieties of commercial leather are obtained by suitably adjusting the manufacturing operations. These processes need not be gone into in detail but the passages relied upon clearly show that hides and skins are termed leather even as soon as the process of tanning is over an the danger of their putrefaction is put an end to. The entry in the CST Act, however, includes within its scope hides and skins until they are dressed. This, as we have seen, represents the stage when they undergo the process of finishing and assume a form in which they can be readily utilised for manufacture of various commercial articles. In this view, it is hardly material that coloured leather may be a form of leather or may even be said to represent a different commercial commodity. The statutory entry is comprehensive enough to include the products emerging from hides and skins until the process of dressing or finishing is done." This is enough to conclude the case against the appellant. However, since reliance is placed on Pyare Lal Malhotras case, we have to make a brief reference to the same. That case dealt with the scope of the entry 14(iv) of the Act, iron and steel "that is to say". The interpretation of this phrase "that is to say" loomed large. It was held in paragraphs 13 and 14 (page 326 of STC; 806 of AIR), as under : "It is true that the question whether goods to be taxed have been subjected to a manufacturing process so as to produce a new marketable commodity, is the decisive test in determining whether an excise duty is leviable or no on certain goods. No doubt, in the law, dealing with the sales tax, the taxable event is the sale and not the manufacture of goods. Nevertheless, if the question is whether a new commercial commodity has come into existence or not, so that its sale is a new taxable event, in the sales tax law, it may also become necessary to consider whether a manufacturing process, which has altered the identity of the commercial commodity, has taken place. The law of sales tax in also concerned with goods of various descriptions. It, therefore, becomes necessary to determine when they ceased to be goods of one taxable description and become those of a commercially different category and description. It appears to us that the position has been simplified by the amendment of the law, as indicated above, so that each of the categories falling under iron and steel constitutes a new species of commercial commodity more clearly now. It follows that when one commercial commodity is transformed into another, it becomes a separate commodity for purposes of sale tax." * The position here is entirely different. There is no such phrase under section14(ia) of the Act. In the case of "oil-seeds" occurring under section14(iv) of the Act, similar phraseology, namely, "that is to say" occurs. This Court is sait Rikhaji Furtarnal v. State of Andhra Pradesh; held in paragraph 4 as under : "Mr. Rangam appearing in support of the appeals contended that there was a circular of Government of India with reference to the provisions of the Central Sales Tax Act as to what would be included within the meaning of oil-seeds and all the five items referred to here were included in the circular as being oil-seeds. It is difficult for us to accept his submission that after the Act has been amended reliance is available to be placed on the circular. On the basis of the test indicated by this Court in State of Tamil Nadu v. Pyare Lal Malhotra we must hold that the expression that is to say employed in the definition in the statute with reference to oil-seeds is exhaustive and is not illustrative. Since on amendment these five items are no more included in oil-seeds, the appellant is not entitled to claim the benefit".This vital distinction cannot be lost sight of. Therefore, the argument of the appellant has to be rejected. | 0[ds]In the instant case, the respondent purchases R.P.C. and after subjecting that to a process of manufacture C.P.C. is produced. When exemption was sought to be claimed on the ground that both these items will fall under section14(ia) of the Act, that was rejected by the JointHigh Court in the impugned judgment considered the scope of the phrase "that is to say". Thereafter it proceeded to hold that C.P.C. is a form of R.P.C. and, therefore, the exemption under section15(b) of the Act would be available.We have already, referred to entry relating to coke occurring under section14(ia) of the Act. When the entry says "coke in all its forms", there is no possibility of bringing coke of different forms except under this entry. The Joint Commissioner has clearly held that both raw petroleum coke and calcined petroleum coke, though different commercial commodities are "declared goods". However, he held that by process of manufacture, raw petroleum coke has lost its original identity and has resulted in a new product, namely, calcined petroleum coke. Therefore, according to him, the benefit under section15(b) of the Act could be availed of only if the same goods are subject tolevy of tax. He opined the use of words "such goods" under section15(b) of the Act are of significance.We are totally unable to accept this line of reasoning. Once the entry is "coke in all its forms" irrespective of the fact raw petroleum coke loses its original identity or in the process of manufacture calcined petroleum coke is produced, cannot take calcined petroleum coke out of the purview of this entry. In more or less identical situation, this Court held in India Carbons case that petroleum coke is one form of coal governed by the expression "coal" within sectionHigh Court was of the view that the word coal includes coke in all its forms in clause (i) of section14 of the Central Act and must be taken to mean coke derived from coal. In other words it must be coke which had been derived or acquired from coal by following the usual process of heating or burning. The contention, therefore, or the appellant was negatived that petroleum coke was covered by the aforesaid provision of the Central Act.This decision fully supports the respondent. The fact that calcined petroleum coke is a different commodity is of little consequence, In interpreting the scope of hides and skins which fall under section14(iii) of the Act, this Court in Mahi Traders case held at pageshe position here is entirely different. There is no such phrase under section14(ia) of the Act. In the case ofoccurring under section14(iv) of the Act, similar phraseology, namely, "that is to say"vital distinction cannot be lost sight of. Therefore, the argument of the appellant has to be rejected. | 0 | 3,310 | 552 | ### 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:
expression "coal" within section 14(ia). The relevant extract of the judgment is as under : "It is not disputed that if petroleum coke is covered by clause (i) of section 14 which reads coal including coke in all its forms the State was not competent to levy tax at a rate exceeding the one given in section15(a) of the Central Act. The High Court was of the view that the word coal includes coke in all its forms in clause (i) of section14 of the Central Act and must be taken to mean coke derived from coal. In other words it must be coke which had been derived or acquired from coal by following the usual process of heating or burning. The contention, therefore, or the appellant was negatived that petroleum coke was covered by the aforesaid provision of the Central Act.This decision fully supports the respondent. The fact that calcined petroleum coke is a different commodity is of little consequence, In interpreting the scope of hides and skins which fall under section14(iii) of the Act, this Court in Mahi Traders case held at pages 236-237 of STC; 734-735 of SCC as under : "....... According to him the products purchased and sold are not different even under the classification by way of the dichotomy between raw and dressed hides and skins under the Tamil Nadu General Sales Tax Act. Under the Central Sales Tax Act, the appellant is in a much better position, because all the hides and skins are brought together in one entry. Whether raw or dressed, the product falls under the same entry....... The operations involved in leather manufacture however fall into three groups. Pre-tanning operations include soaking, liming, deliming, bating and pickling, and post-tanning operations are splitting and shaving, neutralising, bleaching, dyeing, fat-liquoring and stuffing, setting out, samming, drying, staking and finishing. These operations bring about chemical changes in the leather substance and influence the physical characteristics of the leather, and different varieties of commercial leather are obtained by suitably adjusting the manufacturing operations. These processes need not be gone into in detail but the passages relied upon clearly show that hides and skins are termed leather even as soon as the process of tanning is over an the danger of their putrefaction is put an end to. The entry in the CST Act, however, includes within its scope hides and skins until they are dressed. This, as we have seen, represents the stage when they undergo the process of finishing and assume a form in which they can be readily utilised for manufacture of various commercial articles. In this view, it is hardly material that coloured leather may be a form of leather or may even be said to represent a different commercial commodity. The statutory entry is comprehensive enough to include the products emerging from hides and skins until the process of dressing or finishing is done." This is enough to conclude the case against the appellant. However, since reliance is placed on Pyare Lal Malhotras case, we have to make a brief reference to the same. That case dealt with the scope of the entry 14(iv) of the Act, iron and steel "that is to say". The interpretation of this phrase "that is to say" loomed large. It was held in paragraphs 13 and 14 (page 326 of STC; 806 of AIR), as under : "It is true that the question whether goods to be taxed have been subjected to a manufacturing process so as to produce a new marketable commodity, is the decisive test in determining whether an excise duty is leviable or no on certain goods. No doubt, in the law, dealing with the sales tax, the taxable event is the sale and not the manufacture of goods. Nevertheless, if the question is whether a new commercial commodity has come into existence or not, so that its sale is a new taxable event, in the sales tax law, it may also become necessary to consider whether a manufacturing process, which has altered the identity of the commercial commodity, has taken place. The law of sales tax in also concerned with goods of various descriptions. It, therefore, becomes necessary to determine when they ceased to be goods of one taxable description and become those of a commercially different category and description. It appears to us that the position has been simplified by the amendment of the law, as indicated above, so that each of the categories falling under iron and steel constitutes a new species of commercial commodity more clearly now. It follows that when one commercial commodity is transformed into another, it becomes a separate commodity for purposes of sale tax." * The position here is entirely different. There is no such phrase under section14(ia) of the Act. In the case of "oil-seeds" occurring under section14(iv) of the Act, similar phraseology, namely, "that is to say" occurs. This Court is sait Rikhaji Furtarnal v. State of Andhra Pradesh; held in paragraph 4 as under : "Mr. Rangam appearing in support of the appeals contended that there was a circular of Government of India with reference to the provisions of the Central Sales Tax Act as to what would be included within the meaning of oil-seeds and all the five items referred to here were included in the circular as being oil-seeds. It is difficult for us to accept his submission that after the Act has been amended reliance is available to be placed on the circular. On the basis of the test indicated by this Court in State of Tamil Nadu v. Pyare Lal Malhotra we must hold that the expression that is to say employed in the definition in the statute with reference to oil-seeds is exhaustive and is not illustrative. Since on amendment these five items are no more included in oil-seeds, the appellant is not entitled to claim the benefit".This vital distinction cannot be lost sight of. Therefore, the argument of the appellant has to be rejected.
### Response:
0
### Explanation:
In the instant case, the respondent purchases R.P.C. and after subjecting that to a process of manufacture C.P.C. is produced. When exemption was sought to be claimed on the ground that both these items will fall under section14(ia) of the Act, that was rejected by the JointHigh Court in the impugned judgment considered the scope of the phrase "that is to say". Thereafter it proceeded to hold that C.P.C. is a form of R.P.C. and, therefore, the exemption under section15(b) of the Act would be available.We have already, referred to entry relating to coke occurring under section14(ia) of the Act. When the entry says "coke in all its forms", there is no possibility of bringing coke of different forms except under this entry. The Joint Commissioner has clearly held that both raw petroleum coke and calcined petroleum coke, though different commercial commodities are "declared goods". However, he held that by process of manufacture, raw petroleum coke has lost its original identity and has resulted in a new product, namely, calcined petroleum coke. Therefore, according to him, the benefit under section15(b) of the Act could be availed of only if the same goods are subject tolevy of tax. He opined the use of words "such goods" under section15(b) of the Act are of significance.We are totally unable to accept this line of reasoning. Once the entry is "coke in all its forms" irrespective of the fact raw petroleum coke loses its original identity or in the process of manufacture calcined petroleum coke is produced, cannot take calcined petroleum coke out of the purview of this entry. In more or less identical situation, this Court held in India Carbons case that petroleum coke is one form of coal governed by the expression "coal" within sectionHigh Court was of the view that the word coal includes coke in all its forms in clause (i) of section14 of the Central Act and must be taken to mean coke derived from coal. In other words it must be coke which had been derived or acquired from coal by following the usual process of heating or burning. The contention, therefore, or the appellant was negatived that petroleum coke was covered by the aforesaid provision of the Central Act.This decision fully supports the respondent. The fact that calcined petroleum coke is a different commodity is of little consequence, In interpreting the scope of hides and skins which fall under section14(iii) of the Act, this Court in Mahi Traders case held at pageshe position here is entirely different. There is no such phrase under section14(ia) of the Act. In the case ofoccurring under section14(iv) of the Act, similar phraseology, namely, "that is to say"vital distinction cannot be lost sight of. Therefore, the argument of the appellant has to be rejected.
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Manoj Krishna Nayak and Others Vs. State of Orissa and Others | within a few days thereafter the government issued orders appointing 158 teachers as Gazetted Headmasters in Class II service and it was specifically indicated in the order that the appointments were made subject to availability of direct recruits. 6. In writ petition the vires of the Rules was challenged and it was claimed that the requirement of seven years teaching experience for promotees and no such experience for direct recruits was discriminatory and to support this plea reliance was placed on the Regulations of the Board of Secondary Education of the State where for the Headmaster of a High School seeking recognition, a seven years service experience was prescribed. 7. The High Court took into consideration the several contentions placed before it but upheld the Rules. So far as the filling of the vacancies was concerned, the High Court found that the decision to fill up 158 vacancies had been taken prior to the Government Order of 1980 when it decided to give effect to the provisions of direct recruitment. The Court, therefore, took the view that the 158 vacancies should go to the promotees and only the remaining 37 vacancies could be filled up by direct recruitment. It, therefore, quashed the advertisement under Annexure I issued by the State Public Service Commission in regard to 65 vacancies to be filled up by direct recruitment. 8. Civil Appeal No. 8859 of 1983 is by teachers who were opposing the writ petition in the High Court and were interested in direct recruitment. The main contention raised in this appeal is that the direction of the High Court to quash the notification under Annexure I for filling up the 65 vacancies by direct recruitment was bad. The connected Civil Appeal is by the petitioners before the High Court and the decision of the High Court upholding the vires of the Rules is assailed. Both these appeals, therefore, arise out of the decision of the High Court in the same writ petition. The special leave petition which has been tagged to these cases is by two teachers who were not before the High Court in the writ petition but claim to have been represented by their Association. 9. At the hearing it was contended that there are five different cadres in the Orissa Education Service so far as relevant for the present case and they are : (1) Class I consisting of Inspectors of Schools and Director of Public Instruction; (2) Class II consisting of gazetted Headmasters/District Inspectors of School; (3) Senior Subordinate Education Service consisting of non-gazetted Headmasters/Deputy Inspectors of Schools; (4) Junior Subordinate Education Service consisting of Assistant Teacher/Sub-Inspectors of Schools and (5) the Lower Subordinate Education Service consisting of other categories of teachers. So far as the Class II service is concerned promotion is available from categories 3 and 4. Appellants in either of the appeals did not canvass that the Rules were incompetent. The High Court has examined the challenge to the Rules at considerable length and we agree with its conclusion that none of the Rules is open to challenge on the grounds taken. The main contention in regard to the challenge on this score was that experience was totally ignored in the case of direct recruitment. The scheme under the Rules of filling up vacancies in Class II service by direct recruitment as also promotion is not an innovation. There are several services constituted under law where such schemes are operating and while in respect of promotees experience is a requisite qualification, for direct recruits no experience is insisted upon as a prerequisite. We are, therefore, not impressed by the submission that non-prescription of experience for the direct recruits is a ground which would vitiate the, Rules. Civil Appeal arising out of Special Leave Petition (Civil) No. 14994/83 has, therefore, to be dismissed and the High Courts decision that the Rules are valid has to be upheld. 10. Coming to the other appeal, in course of hearing we suggested to Mr. Govindan Nair appearing on behalf of the respondent State that a few more posts could be sanctioned and the 158 teachers who have already been promoted and the 65 vacancies which are to be filled up in terms of the notification under Annexure I should be allowed to be operative. As already indicated, the existing vacancies were 195. As 158 appointments by promotion had been made, the vacancies available were only 37. There was a shortage of 28 posts if 65 vacancies by direct recruitment had to be filled up. Mr. Govindan Nair fairly agreed after taking instructions from an officer of the Education Department of the State who was present in Court that the State Government would increase the number by 28 so as to accommodate the 158 promotees as also the 65 direct recruits in terms of the notification under Annexure I. Accordingly, that part of the High Courts direction which quashed Annexure I is set aside and the State Government is directed in terms of the statement of Mr. Govindan Nair before us that 28 posts should be made available within two months from today and brisk steps should be taken to finalise the recruitment in terms of Annexure I. The appeal is allowed. 11. We have heard counsel with reference to the point raised in the Special Leave Petition. As already indicated these petitioners were not parties before the High Court. The impugned judgment does not deal with their claim. They seem to be aggrieved on account of no exemption having been granted to their category as in the case of teachers already in service. We were told that Government had allowed the exemption to a limit of 9 years in all for other teachers in service. A statement was made from the Bar on behalf of other parties that some Sub-Inspectors of Schools like the petitioners in the Special Leave Petition did apply to the Public Service Commission in terms of Annexure I and their applications have been entertained for consideration. | 0[ds]The High Court has examined the challenge to the Rules at considerable length and we agree with its conclusion that none of the Rules is open to challenge on the grounds taken. The main contention in regard to the challenge on this score was that experience was totally ignored in the case of direct recruitment. The scheme under the Rules of filling up vacancies in Class II service by direct recruitment as also promotion is not an innovation. There are several services constituted under law where such schemes are operating and while in respect of promotees experience is a requisite qualification, for direct recruits no experience is insisted upon as a prerequisite. We are, therefore, not impressed by the submission thatn of experience for the direct recruits is a ground which would vitiate the, Rules. Civil Appeal arising out of Special Leave Petition (Civil) No. 14994/83 has, therefore, to be dismissed and the High Courts decision that the Rules are valid has to be upheld11. We have heard counsel with reference to the point raised in the Special Leave Petition. As already indicated these petitioners were not parties before the High Court. The impugned judgment does not deal with their claim. They seem to be aggrieved on account of no exemption having been granted to their category as in the case of teachers already in service. We were told that Government had allowed the exemption to a limit of 9 years in all for other teachers in service. A statement was made from the Bar on behalf of other parties that somes of Schools like the petitioners in the Special Leave Petition did apply to the Public Service Commission in terms of Annexure I and their applications have been entertained for consideration | 0 | 1,709 | 316 | ### 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:
within a few days thereafter the government issued orders appointing 158 teachers as Gazetted Headmasters in Class II service and it was specifically indicated in the order that the appointments were made subject to availability of direct recruits. 6. In writ petition the vires of the Rules was challenged and it was claimed that the requirement of seven years teaching experience for promotees and no such experience for direct recruits was discriminatory and to support this plea reliance was placed on the Regulations of the Board of Secondary Education of the State where for the Headmaster of a High School seeking recognition, a seven years service experience was prescribed. 7. The High Court took into consideration the several contentions placed before it but upheld the Rules. So far as the filling of the vacancies was concerned, the High Court found that the decision to fill up 158 vacancies had been taken prior to the Government Order of 1980 when it decided to give effect to the provisions of direct recruitment. The Court, therefore, took the view that the 158 vacancies should go to the promotees and only the remaining 37 vacancies could be filled up by direct recruitment. It, therefore, quashed the advertisement under Annexure I issued by the State Public Service Commission in regard to 65 vacancies to be filled up by direct recruitment. 8. Civil Appeal No. 8859 of 1983 is by teachers who were opposing the writ petition in the High Court and were interested in direct recruitment. The main contention raised in this appeal is that the direction of the High Court to quash the notification under Annexure I for filling up the 65 vacancies by direct recruitment was bad. The connected Civil Appeal is by the petitioners before the High Court and the decision of the High Court upholding the vires of the Rules is assailed. Both these appeals, therefore, arise out of the decision of the High Court in the same writ petition. The special leave petition which has been tagged to these cases is by two teachers who were not before the High Court in the writ petition but claim to have been represented by their Association. 9. At the hearing it was contended that there are five different cadres in the Orissa Education Service so far as relevant for the present case and they are : (1) Class I consisting of Inspectors of Schools and Director of Public Instruction; (2) Class II consisting of gazetted Headmasters/District Inspectors of School; (3) Senior Subordinate Education Service consisting of non-gazetted Headmasters/Deputy Inspectors of Schools; (4) Junior Subordinate Education Service consisting of Assistant Teacher/Sub-Inspectors of Schools and (5) the Lower Subordinate Education Service consisting of other categories of teachers. So far as the Class II service is concerned promotion is available from categories 3 and 4. Appellants in either of the appeals did not canvass that the Rules were incompetent. The High Court has examined the challenge to the Rules at considerable length and we agree with its conclusion that none of the Rules is open to challenge on the grounds taken. The main contention in regard to the challenge on this score was that experience was totally ignored in the case of direct recruitment. The scheme under the Rules of filling up vacancies in Class II service by direct recruitment as also promotion is not an innovation. There are several services constituted under law where such schemes are operating and while in respect of promotees experience is a requisite qualification, for direct recruits no experience is insisted upon as a prerequisite. We are, therefore, not impressed by the submission that non-prescription of experience for the direct recruits is a ground which would vitiate the, Rules. Civil Appeal arising out of Special Leave Petition (Civil) No. 14994/83 has, therefore, to be dismissed and the High Courts decision that the Rules are valid has to be upheld. 10. Coming to the other appeal, in course of hearing we suggested to Mr. Govindan Nair appearing on behalf of the respondent State that a few more posts could be sanctioned and the 158 teachers who have already been promoted and the 65 vacancies which are to be filled up in terms of the notification under Annexure I should be allowed to be operative. As already indicated, the existing vacancies were 195. As 158 appointments by promotion had been made, the vacancies available were only 37. There was a shortage of 28 posts if 65 vacancies by direct recruitment had to be filled up. Mr. Govindan Nair fairly agreed after taking instructions from an officer of the Education Department of the State who was present in Court that the State Government would increase the number by 28 so as to accommodate the 158 promotees as also the 65 direct recruits in terms of the notification under Annexure I. Accordingly, that part of the High Courts direction which quashed Annexure I is set aside and the State Government is directed in terms of the statement of Mr. Govindan Nair before us that 28 posts should be made available within two months from today and brisk steps should be taken to finalise the recruitment in terms of Annexure I. The appeal is allowed. 11. We have heard counsel with reference to the point raised in the Special Leave Petition. As already indicated these petitioners were not parties before the High Court. The impugned judgment does not deal with their claim. They seem to be aggrieved on account of no exemption having been granted to their category as in the case of teachers already in service. We were told that Government had allowed the exemption to a limit of 9 years in all for other teachers in service. A statement was made from the Bar on behalf of other parties that some Sub-Inspectors of Schools like the petitioners in the Special Leave Petition did apply to the Public Service Commission in terms of Annexure I and their applications have been entertained for consideration.
### Response:
0
### Explanation:
The High Court has examined the challenge to the Rules at considerable length and we agree with its conclusion that none of the Rules is open to challenge on the grounds taken. The main contention in regard to the challenge on this score was that experience was totally ignored in the case of direct recruitment. The scheme under the Rules of filling up vacancies in Class II service by direct recruitment as also promotion is not an innovation. There are several services constituted under law where such schemes are operating and while in respect of promotees experience is a requisite qualification, for direct recruits no experience is insisted upon as a prerequisite. We are, therefore, not impressed by the submission thatn of experience for the direct recruits is a ground which would vitiate the, Rules. Civil Appeal arising out of Special Leave Petition (Civil) No. 14994/83 has, therefore, to be dismissed and the High Courts decision that the Rules are valid has to be upheld11. We have heard counsel with reference to the point raised in the Special Leave Petition. As already indicated these petitioners were not parties before the High Court. The impugned judgment does not deal with their claim. They seem to be aggrieved on account of no exemption having been granted to their category as in the case of teachers already in service. We were told that Government had allowed the exemption to a limit of 9 years in all for other teachers in service. A statement was made from the Bar on behalf of other parties that somes of Schools like the petitioners in the Special Leave Petition did apply to the Public Service Commission in terms of Annexure I and their applications have been entertained for consideration
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Messrs. Khimji Poonja And Company Vs. Shri Baldev Das C. Parikh | the contract. According to him, even if the contract note was not in the prescribed form, that fact did not affect the preexisting contract which had only to be made subject to the bye-laws but need not have been made in writing at all. Accordingly, the learned Judge dismissed the application.(15) Being aggrieved by that decision, the respondent went upon appeal which was heard by Stone C. J., and Coyajee J., who accepted the appeal, set aside the dismissal of the respondents petition and gave the declaration prayed for and set aside the award. The appellants have now come upon appeal before us after having obtained the necessary certificate from the Bombay High Court.(16) We find ourselves in agreement with the decision of the appellate Court. Ordinarily, when a contract between the parties is reduced to writing, the writing becomes the repository of the contract and that writing only can be looked at to ascertain what the contract between the parties is, and if that writing is not in accordance with the bye-laws, the contract itself must be void. We do not, however, feel pressed to emphasise this aspect of the matter, for, assuming that there was a pre-existing oral contract between the parties dohors the written contract note, as held by Chagla J., we have yet to see whether the so-called pre-existing oral contract was in accordance with the bye-laws, for, if it were not, then it would be hit by S 8, Bombay Cotton Contracts Act, 1932. There is no suggestion that the terms of the so-called preexisting oral contract were in any way different from the terms subsequently recorded in the contract votes actually issued.(17) In the first place we find that the last sentence in the margin clause, in order to be in accordance with the bye-laws, should have been as follows :"In addition to the above, the deposit (not carrying interest payable) under bye-law 51A, namely, at a rate not less than Rs.12 per bale shall, when demanded, be made by you to me/us in Bombay."(18) Instead of that sentence, we have the rubber stamp impression reading as follows :" In addition to the above, the deposit (not carrying interest) payable under bye -law 51-A, namely, at a rate not less than Rs. 25 per bale shall, when demanded, be made by you to us in Bombay."(19) The respondent contends that this term is not in accordance with the bye-laws of the Association. The appellants on the other hand contend that there is no discrepancy, because a provision for a rate not less than Rs. 25 per bale does not contravene or is not inconsistent with the provision for a rate not less than Rs. 12 per bale. In other words, any rate above the rate of Rs. 12 may be stipulated in accordance with the terms of business to which the contract was subject, for, it did not contravene the requirement that the rate should not be less than Rs.12 . It is true that the opening clause of the contract note makes the contract subject to the appellants usual charges and terms of business, but the contract is at the same time subject to the bye laws of the Association. In order to reconcile the two, such terms of business as are not inconsistent with the bye-laws can only be permitted to prevail. The rubber stamp provision clearly imposes on the respondent as the constituent the liability to deposit a higher amount as the minimum amount to be deposited and is to that extent not in accordance with bye-law 51A. Apart from this consideration there is another serious objection to the rubber stamp provision. The language of that rubber stamp provision clearly indicates that it purports to summarise and set out what is payable under bye-law 5l-A, In fact, as already stated above, bye-law 51-A had been amended and what is payable under the amended bye-law is not at a rate not less than Rs. 25 but at a rate not less than Rs. 12 . Therefore, the rubber-stamp provision wrongly summarises and sets out the provisions of bye-law 51-A and consequently is not in accordance with that bye-law.(20) The contention of the respondent has been and is that by reason of the omission of the two clauses at the end of the contract note actually issued by the appellants, it was not in accordance with the bye laws. The learned Attorney-General appearing for the appellants contends that the contract was expressly made subject to the bye-laws and, therefore, the provisions of the new bye-law 65-A were by reference incorporated in the contract. This contention, we are satisfied, is unsound. Bye law 65-A in terms regulates the relation between members and incorporation thereof in a contract between a member agent and an outsider constituent will make no sense and on a plain reading will be meaningless. Further, under bye-law 65-A the last buyer has certain options. The outstanding contract being one for purchase of 900 bales, the appellants if they became the last buyers, could under that bye-law, exercise any of those options at their own discretion. In the second of the two clauses which have been omitted from the contract note this option has been made subject to express instructions of the constituent to the contrary, for it provides that the appellants as agents would be free to exercise their option. "unless I/We shall have received express instructions from you in writing to the contrary, before the commencement of the delivery period if the contract is entered into before the commencement of the delivery period or with the order if the contract is entered into during the permitted days of trading in the delivery period." By reason of the omission of the two clauses, this right of the respondent as constituent is not made a terra of the contract between the parties. It follows, therefore, that the so-called pre-existing oral contract is not in accordance with the bye-laws on this ground also. | 0[ds](11) The Contract Notes actually rendered by the appellants to the respondent, however, were in forms, a specimen copy whereof is set out at pages 12-15 of the Paper Book. A comparison of the two forms of the contract notes will reveal the following difference : (1) In the contract note rendered by the appellants to the respondent the last sentence providing for deposit at the end of the margin clause is missing. There is, however, a rubber Stamp impression on the top of the back of the Contract to the following effect :"In addition to the above, the deposit (not carrying interest) payable under bye-law 51-A, namely, at a rate not less than Rs. 25 per bale shall, when demanded, be made by you to me/ours in Bombay."Evidently, this rubber stamp provision is a reproduction of the sentence that used to be found at the end the margin clause before bye-law 51-A was amended and the clause itself was amended by the Government Notification of 1944. (2) The two new clauses required to be inserted in the contract referred to above have also beenWe find ourselves in agreement with the decision of the appellate Court. Ordinarily, when a contract between the parties is reduced to writing, the writing becomes the repository of the contract and that writing only can be looked at to ascertain what the contract between the parties is, and if that writing is not in accordance with the bye-laws, the contract itself must be void. We do not, however, feel pressed to emphasise this aspect of the matter, for, assuming that there was a pre-existing oral contract between the parties dohors the written contract note, as held by Chagla J., we have yet to see whether the so-called pre-existing oral contract was in accordance with the bye-laws, for, if it were not, then it would be hit by S 8, Bombay Cotton Contracts Act, 1932. There is no suggestion that the terms of the so-called preexisting oral contract were in any way different from the terms subsequently recorded in the contract votes actually issued.(17) In the first place we find that the last sentence in the margin clause, in order to be in accordance with the bye-laws, should have been as follows :"In addition to the above, the deposit (not carrying interest payable) under bye-law 51A, namely, at a rate not less than Rs.12 per bale shall, when demanded, be made by you to me/us inInstead of that sentence, we have the rubber stamp impression reading as follows :" In addition to the above, the deposit (not carrying interest) payable under bye -law 51-A, namely, at a rate not less than Rs. 25 per bale shall, when demanded, be made by you to us in Bombay.It is true that the opening clause of the contract note makes the contract subject to the appellants usual charges and terms of business, but the contract is at the same time subject to the bye laws of the Association. In order to reconcile the two, such terms of business as are not inconsistent with the bye-laws can only be permitted to prevail. The rubber stamp provision clearly imposes on the respondent as the constituent the liability to deposit a higher amount as the minimum amount to be deposited and is to that extent not in accordance with bye-law 51A. Apart from this consideration there is another serious objection to the rubber stamp provision. The language of that rubber stamp provision clearly indicates that it purports to summarise and set out what is payable under bye-law 5l-A, In fact, as already stated above, bye-law 51-A had been amended and what is payable under the amended bye-law is not at a rate not less than Rs. 25 but at a rate not less than Rs. 12 . Therefore, the rubber-stamp provision wrongly summarises and sets out the provisions of bye-law 51-A and consequently is not in accordance with thatlearned Attorney-General appearing for the appellants contends that the contract was expressly made subject to the bye-laws and, therefore, the provisions of the new bye-law 65-A were by reference incorporated in the contract.This contention, we are satisfied, is unsound. Bye law 65-A in terms regulates the relation between members and incorporation thereof in a contract between a member agent and an outsider constituent will make no sense and on a plain reading will be meaningless. Further, under bye-law 65-A the last buyer has certain options. The outstanding contract being one for purchase of 900 bales, the appellants if they became the last buyers, could under that bye-law, exercise any of those options at their own discretion. In the second of the two clauses which have been omitted from the contract note this option has been made subject to express instructions of the constituent to the contrary, for it provides that the appellants as agents would be free to exercise their option. "unless I/We shall have received express instructions from you in writing to the contrary, before the commencement of the delivery period if the contract is entered into before the commencement of the delivery period or with the order if the contract is entered into during the permitted days of trading in the delivery period." By reason of the omission of the two clauses, this right of the respondent as constituent is not made a terra of the contract between the parties. It follows, therefore, that the so-called pre-existing oral contract is not in accordance with the bye-laws on this ground also. | 0 | 3,653 | 1,028 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
the contract. According to him, even if the contract note was not in the prescribed form, that fact did not affect the preexisting contract which had only to be made subject to the bye-laws but need not have been made in writing at all. Accordingly, the learned Judge dismissed the application.(15) Being aggrieved by that decision, the respondent went upon appeal which was heard by Stone C. J., and Coyajee J., who accepted the appeal, set aside the dismissal of the respondents petition and gave the declaration prayed for and set aside the award. The appellants have now come upon appeal before us after having obtained the necessary certificate from the Bombay High Court.(16) We find ourselves in agreement with the decision of the appellate Court. Ordinarily, when a contract between the parties is reduced to writing, the writing becomes the repository of the contract and that writing only can be looked at to ascertain what the contract between the parties is, and if that writing is not in accordance with the bye-laws, the contract itself must be void. We do not, however, feel pressed to emphasise this aspect of the matter, for, assuming that there was a pre-existing oral contract between the parties dohors the written contract note, as held by Chagla J., we have yet to see whether the so-called pre-existing oral contract was in accordance with the bye-laws, for, if it were not, then it would be hit by S 8, Bombay Cotton Contracts Act, 1932. There is no suggestion that the terms of the so-called preexisting oral contract were in any way different from the terms subsequently recorded in the contract votes actually issued.(17) In the first place we find that the last sentence in the margin clause, in order to be in accordance with the bye-laws, should have been as follows :"In addition to the above, the deposit (not carrying interest payable) under bye-law 51A, namely, at a rate not less than Rs.12 per bale shall, when demanded, be made by you to me/us in Bombay."(18) Instead of that sentence, we have the rubber stamp impression reading as follows :" In addition to the above, the deposit (not carrying interest) payable under bye -law 51-A, namely, at a rate not less than Rs. 25 per bale shall, when demanded, be made by you to us in Bombay."(19) The respondent contends that this term is not in accordance with the bye-laws of the Association. The appellants on the other hand contend that there is no discrepancy, because a provision for a rate not less than Rs. 25 per bale does not contravene or is not inconsistent with the provision for a rate not less than Rs. 12 per bale. In other words, any rate above the rate of Rs. 12 may be stipulated in accordance with the terms of business to which the contract was subject, for, it did not contravene the requirement that the rate should not be less than Rs.12 . It is true that the opening clause of the contract note makes the contract subject to the appellants usual charges and terms of business, but the contract is at the same time subject to the bye laws of the Association. In order to reconcile the two, such terms of business as are not inconsistent with the bye-laws can only be permitted to prevail. The rubber stamp provision clearly imposes on the respondent as the constituent the liability to deposit a higher amount as the minimum amount to be deposited and is to that extent not in accordance with bye-law 51A. Apart from this consideration there is another serious objection to the rubber stamp provision. The language of that rubber stamp provision clearly indicates that it purports to summarise and set out what is payable under bye-law 5l-A, In fact, as already stated above, bye-law 51-A had been amended and what is payable under the amended bye-law is not at a rate not less than Rs. 25 but at a rate not less than Rs. 12 . Therefore, the rubber-stamp provision wrongly summarises and sets out the provisions of bye-law 51-A and consequently is not in accordance with that bye-law.(20) The contention of the respondent has been and is that by reason of the omission of the two clauses at the end of the contract note actually issued by the appellants, it was not in accordance with the bye laws. The learned Attorney-General appearing for the appellants contends that the contract was expressly made subject to the bye-laws and, therefore, the provisions of the new bye-law 65-A were by reference incorporated in the contract. This contention, we are satisfied, is unsound. Bye law 65-A in terms regulates the relation between members and incorporation thereof in a contract between a member agent and an outsider constituent will make no sense and on a plain reading will be meaningless. Further, under bye-law 65-A the last buyer has certain options. The outstanding contract being one for purchase of 900 bales, the appellants if they became the last buyers, could under that bye-law, exercise any of those options at their own discretion. In the second of the two clauses which have been omitted from the contract note this option has been made subject to express instructions of the constituent to the contrary, for it provides that the appellants as agents would be free to exercise their option. "unless I/We shall have received express instructions from you in writing to the contrary, before the commencement of the delivery period if the contract is entered into before the commencement of the delivery period or with the order if the contract is entered into during the permitted days of trading in the delivery period." By reason of the omission of the two clauses, this right of the respondent as constituent is not made a terra of the contract between the parties. It follows, therefore, that the so-called pre-existing oral contract is not in accordance with the bye-laws on this ground also.
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(11) The Contract Notes actually rendered by the appellants to the respondent, however, were in forms, a specimen copy whereof is set out at pages 12-15 of the Paper Book. A comparison of the two forms of the contract notes will reveal the following difference : (1) In the contract note rendered by the appellants to the respondent the last sentence providing for deposit at the end of the margin clause is missing. There is, however, a rubber Stamp impression on the top of the back of the Contract to the following effect :"In addition to the above, the deposit (not carrying interest) payable under bye-law 51-A, namely, at a rate not less than Rs. 25 per bale shall, when demanded, be made by you to me/ours in Bombay."Evidently, this rubber stamp provision is a reproduction of the sentence that used to be found at the end the margin clause before bye-law 51-A was amended and the clause itself was amended by the Government Notification of 1944. (2) The two new clauses required to be inserted in the contract referred to above have also beenWe find ourselves in agreement with the decision of the appellate Court. Ordinarily, when a contract between the parties is reduced to writing, the writing becomes the repository of the contract and that writing only can be looked at to ascertain what the contract between the parties is, and if that writing is not in accordance with the bye-laws, the contract itself must be void. We do not, however, feel pressed to emphasise this aspect of the matter, for, assuming that there was a pre-existing oral contract between the parties dohors the written contract note, as held by Chagla J., we have yet to see whether the so-called pre-existing oral contract was in accordance with the bye-laws, for, if it were not, then it would be hit by S 8, Bombay Cotton Contracts Act, 1932. There is no suggestion that the terms of the so-called preexisting oral contract were in any way different from the terms subsequently recorded in the contract votes actually issued.(17) In the first place we find that the last sentence in the margin clause, in order to be in accordance with the bye-laws, should have been as follows :"In addition to the above, the deposit (not carrying interest payable) under bye-law 51A, namely, at a rate not less than Rs.12 per bale shall, when demanded, be made by you to me/us inInstead of that sentence, we have the rubber stamp impression reading as follows :" In addition to the above, the deposit (not carrying interest) payable under bye -law 51-A, namely, at a rate not less than Rs. 25 per bale shall, when demanded, be made by you to us in Bombay.It is true that the opening clause of the contract note makes the contract subject to the appellants usual charges and terms of business, but the contract is at the same time subject to the bye laws of the Association. In order to reconcile the two, such terms of business as are not inconsistent with the bye-laws can only be permitted to prevail. The rubber stamp provision clearly imposes on the respondent as the constituent the liability to deposit a higher amount as the minimum amount to be deposited and is to that extent not in accordance with bye-law 51A. Apart from this consideration there is another serious objection to the rubber stamp provision. The language of that rubber stamp provision clearly indicates that it purports to summarise and set out what is payable under bye-law 5l-A, In fact, as already stated above, bye-law 51-A had been amended and what is payable under the amended bye-law is not at a rate not less than Rs. 25 but at a rate not less than Rs. 12 . Therefore, the rubber-stamp provision wrongly summarises and sets out the provisions of bye-law 51-A and consequently is not in accordance with thatlearned Attorney-General appearing for the appellants contends that the contract was expressly made subject to the bye-laws and, therefore, the provisions of the new bye-law 65-A were by reference incorporated in the contract.This contention, we are satisfied, is unsound. Bye law 65-A in terms regulates the relation between members and incorporation thereof in a contract between a member agent and an outsider constituent will make no sense and on a plain reading will be meaningless. Further, under bye-law 65-A the last buyer has certain options. The outstanding contract being one for purchase of 900 bales, the appellants if they became the last buyers, could under that bye-law, exercise any of those options at their own discretion. In the second of the two clauses which have been omitted from the contract note this option has been made subject to express instructions of the constituent to the contrary, for it provides that the appellants as agents would be free to exercise their option. "unless I/We shall have received express instructions from you in writing to the contrary, before the commencement of the delivery period if the contract is entered into before the commencement of the delivery period or with the order if the contract is entered into during the permitted days of trading in the delivery period." By reason of the omission of the two clauses, this right of the respondent as constituent is not made a terra of the contract between the parties. It follows, therefore, that the so-called pre-existing oral contract is not in accordance with the bye-laws on this ground also.
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Tobacco Manufacturers (India) Ltd Vs. The Commissioner Of Sales-Tax, Bihar, Patna | which goods were delivered in a State for consumption in such State, i. e., the sales falling within the Explanation to Art. 286(1) were fictionally inside that State for all purposes and so within the taxing power of the State in which such delivery took place, (2) that sales which by the fiction created by the Explanation were inside a particular State, were "outside" all other States, and so exempt from tax levy by all such other States, (3) that further and beyond this, all sales which did not satisfy the terms of the Explanation but in which goods were delivered outside the State in which title passed were "outside sales" over which no State would have power to levy a tax. In other words, the argument was that this Court had laid down that every sale which was not "an Explanation sale" and therefore not an "inside sale" within a particular State was an "outside sale" for all States and therefore exempt from the levy of sales-tax by every State in India. In support of this submission learned Counsel relied on a passage in the judgment of the learned Chief Justice at page 1081 (of SCR): (at p.257 of AIR) of the Report which ran :"...............The authors of the Constitution had to devise a formula of restrictions to be imposed on the State-power of taxing sales or purchases involving inter-State elements which would avoid the doubts and difficulties arising out of the imposition of sales-tax on the same transaction by several Provincial Legislatures in the country before the commencement of the Constitution. This they did by enacting Cl. (1)(a) with the Explanation and Cl. (2) of Art. 286. Cl. (1) (a) prohibits the taxation of all sales or purchases which take place outside the State but a localised sale is a troublesome concept, for, a sale is a composite transaction involving as it does several elements such as agreement to sell, transfer of ownership, payment of the price, delivery of the goods and so forth, which may take place at different places.......... To solve the difficulty an easily applicable test for determining what is an outside sale had to be formulated, and that is what, in our opinion, the Explanation was intended to do. It provides by means of a legal fiction that the State in which the goods sold or purchased are actually delivered for consumption therein is the State in which the sale or purchase is to be considered to have taken place, notwithstanding the property in such goods passed in another State ..........An "outside" sale or purchase is explained by defining what is an inside sale, and why actual delivery and consumption in the State are made the determining factors in locating a sale or purchase will presently appear. The test of sufficient territorial nexus was thus replaced by a simpler and more easily workable test : Are the goods actually delivered in the taxing State, as a direct result of a sale or purchase, for the purpose of consumption therein? Then, such sale or purchase shall be deemed to have taken place in that State and outside all other States. The latter States are prohibited from taxing the sale or purchase; the former alone is left free to do so. Multiple taxation of the same transaction by different States is also thus avoided." 16. In our opinion, this passage explains the scope of the Explanation and deals with what might be termed "Explanation sales". If there is a sale falling within the terms of the Explanation, it is "inside" the State of delivery-cum-consumption and that State alone can levy the tax. Such a sale is outside all other States, which are prohibited from taxing such a sale by reason on any territorial nexus however close or cogent. The passage extracted, however, does not deal with cases where the sale in question does not satisfy the requirements of the Explanation leading to the fixation of the fictional situs of the sale determining the State by which the tax might be levied. Whether any and, if so, which is the State which can levy a tax on sale not covered by the Explanation, is not dealt with by this decision at all. 17. From this it would follow that sales of type (a) would be exempt from the levy of tax under the Bihar Sales-tax Act by reason of their being "inside" sales within the State of delivery-cum-consumption and therefore being "outside" sales quoad the State of Bihar. Sales of type (b), however, not having been dealt with by the decision in the United Motors case, 1953 SCR 1069 : (AIR 1953 SC 252 ) it would follow that on the orders of the Board of Revenue, the previous decision of the Board in the Bengal Timber case, (Case No. 61 of 1952) would have still held the field and the transactions would be liable to the levy of tax and the tax levied on those sales would continue to be valid. Learned Counsel for the appellants was certainly right in his submission that as the orders of the Board of Revenue had become final as between the parties, the liability to tax must be determined on the basis of these orders- be they right or wrong. It is therefore unnecessary to consider whether, apart from the decision of this Court in the United Motors case, 1953 SCR 1069 : (AIR 1953 SC 252 ) the appellants would be entitled to any further relief on the basis of any other decision of this Court interpreting Art. 286(1) and (2). 18. As already stated, the appellants have already been granted a refund in regard to the tax collected in respect of the sales falling within type (a). As, in our opinion, the appellants were not on the orders of the Board of Revenue entitled to a refund of the tax on transactions falling within type (b), the judgment of the High Court dismissing their petitions is clearly right. | 0[ds]To attract the principle thus enunciated, it is necessary that there should be an order of a superior tribunal clear, certain and definite in its terms, and without any ambiguity, to which the subordinate authority or officer to whom it is addressed, could give effect. We are clearly of the opinion that the decision referred to cannot apply to the situation in the present caseWe cannot presume that Mr. Bakshi did not peruse the judgment in the United Motors case 1953 SCR 1069 : (AIR 1953 SC 252 ) when he referred to it in his order, nor that he did not acquaint himself with the terms of the Explanation to Art. 286(1)(a) of the Constitution, the scope and significance of which was analysed and elaborated in that decision. We are rather inclined to agree with the construction which the member himself put on this order in April,1955, that he left it to the Sales-tax Officer to decide for himself the relief to which the appellants were entitled on that officers interpretation of the judgment of this Court. It may be that this was not a satisfactory method of disposing of the revision petition-leaving the point which arose for decision by the member of the Board of Revenue, to be decided by the Sales-tax Officer, but we are now only concerned with the simple questionwhether Mr. Bakshi had or had not determined the true scope and effect of the judgment of this Court and decided it as meaning that all sales as a result of which goods were delivered outside the State of Bihar were within the Explanation and so were exempt from the taxliability.Notwithstanding the cryptic language used by the Member of the Board, we are clearly of the opinion that he did not intend to decide this point in favour of the appellants in the manner contended for by them13. It is now common ground that when the Board of Revenue was approached by the State Government to review or clarify this order, Mr. Bakshi, by his order dated April 25, 1955, expressed himself as having decided earlier that he had directed the sales-tax officer to give effect to the judgment of this Court in the United Motors case, 1953 SCR 1059 : (AIR 1953 SC 252 ) and had done nothing further. Learned Counsel for the appellants strongly pressed before us that the member of the Board having accepted the preliminary objection that there was no provision in the Bihar Sales-tax Act by which a party concerned might move the Board to clarify or explain the order, he had no jurisdiction to effect any clarification of his previous order and that whatever was said by the Board on the second occasion could not be held to modify the earlier order or deny the appellants such benefits as were granted to them by the earlier order of August 28, 1953. But as against this, it has to be noted that before the Board both the parties, i. e., the State Government as well as the appellant-agreed that clarification was not needed because "of the specific reference to the judgment of the Supreme Court in the United Motors case, 1953 SCR 1069 : (AIR 1953 SC 252 )". As this observation was embodied in the later order with the consent of both the parties, we consider that it is too late now for the appellants to raise any technical objection to this sentence being given effect to. In view, however, of the conclusion that we have reached as to the construction of the earlier order of August, 1953, it is unnecessary to pursue the matter any further16. In our opinion, this passage explains the scope of the Explanation and deals with what might be termed "Explanation sales". If there is a sale falling within the terms of the Explanation, it is "inside" the State of delivery-cum-consumption and that State alone can levy the tax. Such a sale is outside all other States, which are prohibited from taxing such a sale by reason on any territorial nexus however close or cogent. The passage extracted, however, does not deal with cases where the sale in question does not satisfy the requirements of the Explanation leading to the fixation of the fictional situs of the sale determining the State by which the tax might be levied. Whether any and, if so, which is the State which can levy a tax on sale not covered by the Explanation, is not dealt with by this decision at all17. From this it would follow that sales of type (a) would be exempt from the levy of tax under the Bihar Sales-tax Act by reason of their being "inside" sales within the State of delivery-cum-consumption and therefore being "outside" sales quoad the State of Bihar. Sales of type (b), however, not having been dealt with by the decision in the United Motors case, 1953 SCR 1069 : (AIR 1953 SC 252 ) it would follow that on the orders of the Board of Revenue, the previous decision of the Board in the Bengal Timber case, (Case No. 61 of 1952) would have still held the field and the transactions would be liable to the levy of tax and the tax levied on those sales would continue to be valid. Learned Counsel for the appellants was certainly right in his submission that as the orders of the Board of Revenue had become final as between the parties, the liability to tax must be determined on the basis of these orders- be they right or wrong. It is therefore unnecessary to consider whether, apart from the decision of this Court in the United Motors case, 1953 SCR 1069 : (AIR 1953 SC 252 ) the appellants would be entitled to any further relief on the basis of any other decision of this Court interpreting Art. 286(1) and (2)18. As already stated, the appellants have already been granted a refund in regard to the tax collected in respect of the sales falling within type (a). As, in our opinion, the appellants were not on the orders of the Board of Revenue entitled to a refund of the tax on transactions falling within type (b), the judgment of the High Court dismissing their petitions is clearly right. | 0 | 4,787 | 1,160 | ### 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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which goods were delivered in a State for consumption in such State, i. e., the sales falling within the Explanation to Art. 286(1) were fictionally inside that State for all purposes and so within the taxing power of the State in which such delivery took place, (2) that sales which by the fiction created by the Explanation were inside a particular State, were "outside" all other States, and so exempt from tax levy by all such other States, (3) that further and beyond this, all sales which did not satisfy the terms of the Explanation but in which goods were delivered outside the State in which title passed were "outside sales" over which no State would have power to levy a tax. In other words, the argument was that this Court had laid down that every sale which was not "an Explanation sale" and therefore not an "inside sale" within a particular State was an "outside sale" for all States and therefore exempt from the levy of sales-tax by every State in India. In support of this submission learned Counsel relied on a passage in the judgment of the learned Chief Justice at page 1081 (of SCR): (at p.257 of AIR) of the Report which ran :"...............The authors of the Constitution had to devise a formula of restrictions to be imposed on the State-power of taxing sales or purchases involving inter-State elements which would avoid the doubts and difficulties arising out of the imposition of sales-tax on the same transaction by several Provincial Legislatures in the country before the commencement of the Constitution. This they did by enacting Cl. (1)(a) with the Explanation and Cl. (2) of Art. 286. Cl. (1) (a) prohibits the taxation of all sales or purchases which take place outside the State but a localised sale is a troublesome concept, for, a sale is a composite transaction involving as it does several elements such as agreement to sell, transfer of ownership, payment of the price, delivery of the goods and so forth, which may take place at different places.......... To solve the difficulty an easily applicable test for determining what is an outside sale had to be formulated, and that is what, in our opinion, the Explanation was intended to do. It provides by means of a legal fiction that the State in which the goods sold or purchased are actually delivered for consumption therein is the State in which the sale or purchase is to be considered to have taken place, notwithstanding the property in such goods passed in another State ..........An "outside" sale or purchase is explained by defining what is an inside sale, and why actual delivery and consumption in the State are made the determining factors in locating a sale or purchase will presently appear. The test of sufficient territorial nexus was thus replaced by a simpler and more easily workable test : Are the goods actually delivered in the taxing State, as a direct result of a sale or purchase, for the purpose of consumption therein? Then, such sale or purchase shall be deemed to have taken place in that State and outside all other States. The latter States are prohibited from taxing the sale or purchase; the former alone is left free to do so. Multiple taxation of the same transaction by different States is also thus avoided." 16. In our opinion, this passage explains the scope of the Explanation and deals with what might be termed "Explanation sales". If there is a sale falling within the terms of the Explanation, it is "inside" the State of delivery-cum-consumption and that State alone can levy the tax. Such a sale is outside all other States, which are prohibited from taxing such a sale by reason on any territorial nexus however close or cogent. The passage extracted, however, does not deal with cases where the sale in question does not satisfy the requirements of the Explanation leading to the fixation of the fictional situs of the sale determining the State by which the tax might be levied. Whether any and, if so, which is the State which can levy a tax on sale not covered by the Explanation, is not dealt with by this decision at all. 17. From this it would follow that sales of type (a) would be exempt from the levy of tax under the Bihar Sales-tax Act by reason of their being "inside" sales within the State of delivery-cum-consumption and therefore being "outside" sales quoad the State of Bihar. Sales of type (b), however, not having been dealt with by the decision in the United Motors case, 1953 SCR 1069 : (AIR 1953 SC 252 ) it would follow that on the orders of the Board of Revenue, the previous decision of the Board in the Bengal Timber case, (Case No. 61 of 1952) would have still held the field and the transactions would be liable to the levy of tax and the tax levied on those sales would continue to be valid. Learned Counsel for the appellants was certainly right in his submission that as the orders of the Board of Revenue had become final as between the parties, the liability to tax must be determined on the basis of these orders- be they right or wrong. It is therefore unnecessary to consider whether, apart from the decision of this Court in the United Motors case, 1953 SCR 1069 : (AIR 1953 SC 252 ) the appellants would be entitled to any further relief on the basis of any other decision of this Court interpreting Art. 286(1) and (2). 18. As already stated, the appellants have already been granted a refund in regard to the tax collected in respect of the sales falling within type (a). As, in our opinion, the appellants were not on the orders of the Board of Revenue entitled to a refund of the tax on transactions falling within type (b), the judgment of the High Court dismissing their petitions is clearly right.
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situation in the present caseWe cannot presume that Mr. Bakshi did not peruse the judgment in the United Motors case 1953 SCR 1069 : (AIR 1953 SC 252 ) when he referred to it in his order, nor that he did not acquaint himself with the terms of the Explanation to Art. 286(1)(a) of the Constitution, the scope and significance of which was analysed and elaborated in that decision. We are rather inclined to agree with the construction which the member himself put on this order in April,1955, that he left it to the Sales-tax Officer to decide for himself the relief to which the appellants were entitled on that officers interpretation of the judgment of this Court. It may be that this was not a satisfactory method of disposing of the revision petition-leaving the point which arose for decision by the member of the Board of Revenue, to be decided by the Sales-tax Officer, but we are now only concerned with the simple questionwhether Mr. Bakshi had or had not determined the true scope and effect of the judgment of this Court and decided it as meaning that all sales as a result of which goods were delivered outside the State of Bihar were within the Explanation and so were exempt from the taxliability.Notwithstanding the cryptic language used by the Member of the Board, we are clearly of the opinion that he did not intend to decide this point in favour of the appellants in the manner contended for by them13. It is now common ground that when the Board of Revenue was approached by the State Government to review or clarify this order, Mr. Bakshi, by his order dated April 25, 1955, expressed himself as having decided earlier that he had directed the sales-tax officer to give effect to the judgment of this Court in the United Motors case, 1953 SCR 1059 : (AIR 1953 SC 252 ) and had done nothing further. Learned Counsel for the appellants strongly pressed before us that the member of the Board having accepted the preliminary objection that there was no provision in the Bihar Sales-tax Act by which a party concerned might move the Board to clarify or explain the order, he had no jurisdiction to effect any clarification of his previous order and that whatever was said by the Board on the second occasion could not be held to modify the earlier order or deny the appellants such benefits as were granted to them by the earlier order of August 28, 1953. But as against this, it has to be noted that before the Board both the parties, i. e., the State Government as well as the appellant-agreed that clarification was not needed because "of the specific reference to the judgment of the Supreme Court in the United Motors case, 1953 SCR 1069 : (AIR 1953 SC 252 )". As this observation was embodied in the later order with the consent of both the parties, we consider that it is too late now for the appellants to raise any technical objection to this sentence being given effect to. In view, however, of the conclusion that we have reached as to the construction of the earlier order of August, 1953, it is unnecessary to pursue the matter any further16. In our opinion, this passage explains the scope of the Explanation and deals with what might be termed "Explanation sales". If there is a sale falling within the terms of the Explanation, it is "inside" the State of delivery-cum-consumption and that State alone can levy the tax. Such a sale is outside all other States, which are prohibited from taxing such a sale by reason on any territorial nexus however close or cogent. The passage extracted, however, does not deal with cases where the sale in question does not satisfy the requirements of the Explanation leading to the fixation of the fictional situs of the sale determining the State by which the tax might be levied. Whether any and, if so, which is the State which can levy a tax on sale not covered by the Explanation, is not dealt with by this decision at all17. From this it would follow that sales of type (a) would be exempt from the levy of tax under the Bihar Sales-tax Act by reason of their being "inside" sales within the State of delivery-cum-consumption and therefore being "outside" sales quoad the State of Bihar. Sales of type (b), however, not having been dealt with by the decision in the United Motors case, 1953 SCR 1069 : (AIR 1953 SC 252 ) it would follow that on the orders of the Board of Revenue, the previous decision of the Board in the Bengal Timber case, (Case No. 61 of 1952) would have still held the field and the transactions would be liable to the levy of tax and the tax levied on those sales would continue to be valid. Learned Counsel for the appellants was certainly right in his submission that as the orders of the Board of Revenue had become final as between the parties, the liability to tax must be determined on the basis of these orders- be they right or wrong. It is therefore unnecessary to consider whether, apart from the decision of this Court in the United Motors case, 1953 SCR 1069 : (AIR 1953 SC 252 ) the appellants would be entitled to any further relief on the basis of any other decision of this Court interpreting Art. 286(1) and (2)18. As already stated, the appellants have already been granted a refund in regard to the tax collected in respect of the sales falling within type (a). As, in our opinion, the appellants were not on the orders of the Board of Revenue entitled to a refund of the tax on transactions falling within type (b), the judgment of the High Court dismissing their petitions is clearly right.
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Jai Jai Ram Manohar Lal Vs. National Building Material Supply, Gurgaon | may be allowed if it can be made without injustice to the other side.In Amulakchand Mewaram v. Babulal Kanalal, 35 Bom LR 569=(AIR 1933 Bom 304 ), Beaumont, C. J., in delivering the judgment of the Bombay High Court set out the principles applicable to cases like the present and observed:". . . . . . . . the question whether there should be an amendment or not really turns upon whether the name in which the suit is brought is the name of a nonexistent person or whether it is merely a misdescription of existing persons. If the former is the case, the suit is a nullity and no amendment can cure it. If the latter is the case, prima facie, there ought to be an amendment because the general rule, subject no doubt to certain exceptions, is that the Court should always allow an amendment where any loss to the opposing party can be compensated for by costs.In Amulakchand Mewarams case, 35 Bom LR 569=(AIR 1933 Bom 304 ) a Hindu undivided family sued in its business name. It was not appreciated at an early stage of the suit that in fact the firm name was not of a partnership, but was the name of a joint Hindu family. An objection was raised by the defendant that the suit as filed was not maintainable. An application to amend the plaint, by substituting the names of the three members of the joint family for the name of the family firm as plaintiffs, was rejected by the Court of first instance. In appeal the High Court observed that a suit brought in the name of a firm in a case not within Order 30, Civil Procedure Code being in fact a case of misdescription of existing persons, leave to amend ought to have been given.6. This Court considered a somewhat similar case in Purushottam Umedbhais case, 1961-1SCR 982=(AIR 1961 SC 325 ). A firm carrying on business outside India filed a suit in the firm name in the High Court of Calcutta for a decree for compensation for breach of contract. The plaintiff then applied for amendment of the plaint by describing the names of all the partners and striking out the name of the firm as a mere misdescription. The application for amendment was rejected on the view that the original plaint was no plaint in law andit was not a case of misnomer or misdescription, but a case of a non-existent firm or a non-existent person suing. In appeal, the High Court held that the description of the plaintiff by a firm name in a case where the Code of Civil Procedure did not permit a suit to be brought in the firm name should properly be considered a case of description of the individual partners of the business and as such a misdescription, which in law can be corrected and should not be considered to amount to a description of a non-existent person. Against the order of the High Court an appeal was preferred to this Court. This Court observed (at p. 994):"Since, however, a firm is not a legal entity the privilege of suing in the name of a firm is permissible only to those persons who, as partners, are doing business in India. Such privilege is not extended to persons who are doing business as partners outside India. In their case they still have to sue in their individual names. If however, under some misapprehension, persons doing business as partners outside India do file a plaint in the name of their firm they are misdescribing themselves, as the suit instituted is by them, they being known collectively as a firm. It seems, therefore, that a plaint filed in a Court in India in the name of a firm doing business outside India is not by itself a nullity. It is a plaint by all the partners of the firm with a defective description of themselves for the purpose of the Code of Civil Procedure. In these circumstances, a Civil Court could permit, under the provisions of Section 153 of the Code (or possibly under Order VI, Rule 17, about which we say nothing), an amendment of the plaint to enable a proper description of the plaintiffs to appear in it in order to assist the Court in determining the real question or issue between the parties."These cases do no more than illustrate the well-settled rule that all amendments should be permitted as may be necessary for the purpose of determining the real question in controversy between the parties, unless by permitting the amendment injustice may result to the other side.7. In the present case, the plaintiff was carrying on business as commission agent in the name of "Jai Jai Ram Manohar Lal". The plaintiff was competent to sue in his own name as Manager of the Hindu undivided family to which the business belonged; be says he sued on behalf of the family in the business name. The observation made by the High Court that the application for amendment of the plaint could not be granted,because there was no averment therein that the misdescription was on account of a bona fide mistake, and on that account the suit must fail, cannot be accepted. In our view, there is no rule that unless in an application for amendment of the plaint it is expressly averred that the error, omission or misdescription is due to a bona fide mistake, the Court has no power to grant leave to amend the plaint. The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations.8. Since the name in which the action was instituted was merely a misdescription of the original plaintiff, no question of limitation arises; the plaint must be deemed on amendment to have been instituted in the name of the real plaintiff on the date on which it was originally instituted. | 1[ds]5. The order passed by the High Court cannot beIn the present case, the plaintiff was carrying on business as commission agent in the name of "Jai Jai Ram Manohar Lal". The plaintiff was competent to sue in his own name as Manager of the Hindu undivided family to which the business belonged; be says he sued on behalf of the family in the business name. The observation made by the High Court that the application for amendment of the plaint could not be granted,because there was no averment therein that the misdescription was on account of a bona fide mistake, and on that account the suit must fail, cannot be accepted. In our view, there is no rule that unless in an application for amendment of the plaint it is expressly averred that the error, omission or misdescription is due to a bona fide mistake, the Court has no power to grant leave to amend the plaint. The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations.8. Since the name in which the action was instituted was merely a misdescription of the original plaintiff, no question of limitation arises; the plaint must be deemed on amendment to have been instituted in the name of the real plaintiff on the date on which it was originally instituted. | 1 | 2,036 | 260 | ### Instruction:
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may be allowed if it can be made without injustice to the other side.In Amulakchand Mewaram v. Babulal Kanalal, 35 Bom LR 569=(AIR 1933 Bom 304 ), Beaumont, C. J., in delivering the judgment of the Bombay High Court set out the principles applicable to cases like the present and observed:". . . . . . . . the question whether there should be an amendment or not really turns upon whether the name in which the suit is brought is the name of a nonexistent person or whether it is merely a misdescription of existing persons. If the former is the case, the suit is a nullity and no amendment can cure it. If the latter is the case, prima facie, there ought to be an amendment because the general rule, subject no doubt to certain exceptions, is that the Court should always allow an amendment where any loss to the opposing party can be compensated for by costs.In Amulakchand Mewarams case, 35 Bom LR 569=(AIR 1933 Bom 304 ) a Hindu undivided family sued in its business name. It was not appreciated at an early stage of the suit that in fact the firm name was not of a partnership, but was the name of a joint Hindu family. An objection was raised by the defendant that the suit as filed was not maintainable. An application to amend the plaint, by substituting the names of the three members of the joint family for the name of the family firm as plaintiffs, was rejected by the Court of first instance. In appeal the High Court observed that a suit brought in the name of a firm in a case not within Order 30, Civil Procedure Code being in fact a case of misdescription of existing persons, leave to amend ought to have been given.6. This Court considered a somewhat similar case in Purushottam Umedbhais case, 1961-1SCR 982=(AIR 1961 SC 325 ). A firm carrying on business outside India filed a suit in the firm name in the High Court of Calcutta for a decree for compensation for breach of contract. The plaintiff then applied for amendment of the plaint by describing the names of all the partners and striking out the name of the firm as a mere misdescription. The application for amendment was rejected on the view that the original plaint was no plaint in law andit was not a case of misnomer or misdescription, but a case of a non-existent firm or a non-existent person suing. In appeal, the High Court held that the description of the plaintiff by a firm name in a case where the Code of Civil Procedure did not permit a suit to be brought in the firm name should properly be considered a case of description of the individual partners of the business and as such a misdescription, which in law can be corrected and should not be considered to amount to a description of a non-existent person. Against the order of the High Court an appeal was preferred to this Court. This Court observed (at p. 994):"Since, however, a firm is not a legal entity the privilege of suing in the name of a firm is permissible only to those persons who, as partners, are doing business in India. Such privilege is not extended to persons who are doing business as partners outside India. In their case they still have to sue in their individual names. If however, under some misapprehension, persons doing business as partners outside India do file a plaint in the name of their firm they are misdescribing themselves, as the suit instituted is by them, they being known collectively as a firm. It seems, therefore, that a plaint filed in a Court in India in the name of a firm doing business outside India is not by itself a nullity. It is a plaint by all the partners of the firm with a defective description of themselves for the purpose of the Code of Civil Procedure. In these circumstances, a Civil Court could permit, under the provisions of Section 153 of the Code (or possibly under Order VI, Rule 17, about which we say nothing), an amendment of the plaint to enable a proper description of the plaintiffs to appear in it in order to assist the Court in determining the real question or issue between the parties."These cases do no more than illustrate the well-settled rule that all amendments should be permitted as may be necessary for the purpose of determining the real question in controversy between the parties, unless by permitting the amendment injustice may result to the other side.7. In the present case, the plaintiff was carrying on business as commission agent in the name of "Jai Jai Ram Manohar Lal". The plaintiff was competent to sue in his own name as Manager of the Hindu undivided family to which the business belonged; be says he sued on behalf of the family in the business name. The observation made by the High Court that the application for amendment of the plaint could not be granted,because there was no averment therein that the misdescription was on account of a bona fide mistake, and on that account the suit must fail, cannot be accepted. In our view, there is no rule that unless in an application for amendment of the plaint it is expressly averred that the error, omission or misdescription is due to a bona fide mistake, the Court has no power to grant leave to amend the plaint. The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations.8. Since the name in which the action was instituted was merely a misdescription of the original plaintiff, no question of limitation arises; the plaint must be deemed on amendment to have been instituted in the name of the real plaintiff on the date on which it was originally instituted.
### Response:
1
### Explanation:
5. The order passed by the High Court cannot beIn the present case, the plaintiff was carrying on business as commission agent in the name of "Jai Jai Ram Manohar Lal". The plaintiff was competent to sue in his own name as Manager of the Hindu undivided family to which the business belonged; be says he sued on behalf of the family in the business name. The observation made by the High Court that the application for amendment of the plaint could not be granted,because there was no averment therein that the misdescription was on account of a bona fide mistake, and on that account the suit must fail, cannot be accepted. In our view, there is no rule that unless in an application for amendment of the plaint it is expressly averred that the error, omission or misdescription is due to a bona fide mistake, the Court has no power to grant leave to amend the plaint. The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations.8. Since the name in which the action was instituted was merely a misdescription of the original plaintiff, no question of limitation arises; the plaint must be deemed on amendment to have been instituted in the name of the real plaintiff on the date on which it was originally instituted.
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C.I.T. West Bengal - Iii & Ors. Etc Vs. Oriental Rubber Works Etc | of the rule nisi, the same ought to have been upheld as binding on the respondent-assessee. In order words, according to the counsel for the revenue, the unauthorised retention of the seized books and documents beyond 180 days, if any, could not render the assessment for the year 1964-65 properly made invalid. Counsel further pointed out that the respondent-assessee had even preferred appeals to higher authorities challenging the said assessment on merits. It may be stated that counsel for the respondent-assessee in this appeal conceded that in all the circumstances of the case the assessment already made on 5-2-1969 should be allowed to stand subject of course to the result of the appeals that have been preferred by the respondent-assessee against it. In this view of the matter, the second contention urged by counsel for the revenue in this appeal has to be accepted and the assessment for the asst. yr. 1964-65 made on 5-2-1969 subject as aforesaid to be upheld. That leaves for consideration the first contention, which as we have indicated earlier, is common to all the appeals.4. In order to decide the aforesaid contention it will be desirable to set out the material provisions of s. 132 of the Act. namely, sub-s. (8), (10) and (12) thereof, which run as follows :"132(8) The books of account to other documents seized under sub-section (1) or sub-section (1A) shall not be retained by the authorised officer for a period exceeding one hundred and eightly days from the date of the seizure unless the reasons for retaining the same are recorded by him in writing and the approval of the Commissioner for such retention is obtained :Provided that the Commissioner shall not authorise the retention of the books of account and other documents for a period exceeding thirty days after all the proceedings under the Indian Income Tax Act, 1922 (XI of 1922), or this Act in respect of the years for which the books of account or other documents are relevant are completed.(10) If a person legally entitled to the books of account or other documents seized under sub-section (1) or sub-section (1A) objects for any reason to the approval given by the Commissioner under sub-section (8), he may make an application to the Board stating therein the reasons for such objection and requesting for the return of the books of account or other documents.(12) On receipt of the application under sub-section (10) the Board ... may, after giving the applicant an opportunity of being heard, pass such orders as it thinks fir".On a plain reading of the aforesaid provisions it will be clear that ordinarily the books of account or other document that may be seized under an authorisation issued u/sub-s. (1) of s. 132 can be retained by the authorised officer or the concerned ITO for a period of one hundred and eighty days from the date of seizure, whereafter the person from custody such books or documents have been seized or the person to whom such books or documents belong becomes entitled to the return of the same unless the reasons for any extended retention are recorded in writing by the authorized officer the concerned ITO and approval of the Commissioner for such retention is obtained. In other words two conditions must be fulfilled before such extended retention becomes permissible in law : (a) reasons in writing must be recorded by the authorised officer or the concerned ITO seeking the Commissioners approval and (b) obtaining of the Commissioners approval for such extended retention and if either of these conditions is not fulfilled such extended retention will become unlawful and the concerned person (i.e. the person from whose custody such books or documents have been seized or the person to whom those belong) acquires a right to the return of the same forthwith. It is true that sub-s. (8) does not in terms provide that the Commissioners approval or the recorded reasons on which it might be based should be communicated to the concerned person but in our view since the person concerned is bound to be materially prejudiced in the enforcement of his right to have such books and documents returned to him by being kept ignorant about the factum of fulfilment of either of the conditions it is obligatory upon the revenue to communicate the Commissioners approval as also the recorded reasons to the person concerned. In the absence of such communication the Commissioners decision according his approval will not become effective.5. Moreover, sub-s. (10) confers upon the person legally entitled to the return to the seized books and documents a right to object to the approvals given by the Commissioner u/sub-s. (8) by making an application to the Central Board stating therein the reasons for such objection and u/sub-s. (12) it is provided that the Central Board may, after giving the application an opportunity of being heard pass such orders as it thinks fit. It is obvious that without the knowledge of the factum of the Commissioners approval as also of the recorded reasons on the basis of which such approval has been obtained it will not be possible for the person to whom the seized books or documents belong to make any effective objection to the approval before the Board and get back his books or documents. In our view the scheme of sum-ss. (8), (10) and (12) of s. 132 makes it amply clear that there is a statutory obligations on the revenue to communicate to the person concerned not merely the commissioners approval but the recorded reasons on which the same has been obtained and that such communication must be made as expeditiously as possible after the passing of the order of approval by the Commissioner and in default of such expeditious communication any further retention of the seized books or document would become in valid and unlawful. It is obvious that obligation arises in regard to every approval of the Commissioner that might have been accorded from time to time. | 0[ds]On a plain reading of the aforesaid provisions it will be clear that ordinarily the books of account or other document that may be seized under an authorisation issued u/sub-s. (1) of s. 132 can be retained by the authorised officer or the concerned ITO for a period of one hundred and eighty days from the date of seizure, whereafter the person from custody such books or documents have been seized or the person to whom such books or documents belong becomes entitled to the return of the same unless the reasons for any extended retention are recorded in writing by the authorized officer the concerned ITO and approval of the Commissioner for such retention is obtained. In other words two conditions must be fulfilled before such extended retention becomes permissible in law : (a) reasons in writing must be recorded by the authorised officer or the concerned ITO seeking the Commissioners approval and (b) obtaining of the Commissioners approval for such extended retention and if either of these conditions is not fulfilled such extended retention will become unlawful and the concerned person (i.e. the person from whose custody such books or documents have been seized or the person to whom those belong) acquires a right to the return of the same forthwith. It is true that sub-s. (8) does not in terms provide that the Commissioners approval or the recorded reasons on which it might be based should be communicated to the concerned person but in our view since the person concerned is bound to be materially prejudiced in the enforcement of his right to have such books and documents returned to him by being kept ignorant about the factum of fulfilment of either of the conditions it is obligatory upon the revenue to communicate the Commissioners approval as also the recorded reasons to the person concerned. In the absence of such communication the Commissioners decision according his approval will not become effective.5. Moreover, sub-s. (10) confers upon the person legally entitled to the return to the seized books and documents a right to object to the approvals given by the Commissioner u/sub-s. (8) by making an application to the Central Board stating therein the reasons for such objection and u/sub-s. (12) it is provided that the Central Board may, after giving the application an opportunity of being heard pass such orders as it thinks fit. It is obvious that without the knowledge of the factum of the Commissioners approval as also of the recorded reasons on the basis of which such approval has been obtained it will not be possible for the person to whom the seized books or documents belong to make any effective objection to the approval before the Board and get back his books or documents. In our view the scheme of sum-ss. (8), (10) and (12) of s. 132 makes it amply clear that there is a statutory obligations on the revenue to communicate to the person concerned not merely the commissioners approval but the recorded reasons on which the same has been obtained and that such communication must be made as expeditiously as possible after the passing of the order of approval by the Commissioner and in default of such expeditious communication any further retention of the seized books or document would become in valid and unlawful. It is obvious that obligation arises in regard to every approval of the Commissioner that might have been accorded from time to time. | 0 | 2,386 | 617 | ### Instruction:
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of the rule nisi, the same ought to have been upheld as binding on the respondent-assessee. In order words, according to the counsel for the revenue, the unauthorised retention of the seized books and documents beyond 180 days, if any, could not render the assessment for the year 1964-65 properly made invalid. Counsel further pointed out that the respondent-assessee had even preferred appeals to higher authorities challenging the said assessment on merits. It may be stated that counsel for the respondent-assessee in this appeal conceded that in all the circumstances of the case the assessment already made on 5-2-1969 should be allowed to stand subject of course to the result of the appeals that have been preferred by the respondent-assessee against it. In this view of the matter, the second contention urged by counsel for the revenue in this appeal has to be accepted and the assessment for the asst. yr. 1964-65 made on 5-2-1969 subject as aforesaid to be upheld. That leaves for consideration the first contention, which as we have indicated earlier, is common to all the appeals.4. In order to decide the aforesaid contention it will be desirable to set out the material provisions of s. 132 of the Act. namely, sub-s. (8), (10) and (12) thereof, which run as follows :"132(8) The books of account to other documents seized under sub-section (1) or sub-section (1A) shall not be retained by the authorised officer for a period exceeding one hundred and eightly days from the date of the seizure unless the reasons for retaining the same are recorded by him in writing and the approval of the Commissioner for such retention is obtained :Provided that the Commissioner shall not authorise the retention of the books of account and other documents for a period exceeding thirty days after all the proceedings under the Indian Income Tax Act, 1922 (XI of 1922), or this Act in respect of the years for which the books of account or other documents are relevant are completed.(10) If a person legally entitled to the books of account or other documents seized under sub-section (1) or sub-section (1A) objects for any reason to the approval given by the Commissioner under sub-section (8), he may make an application to the Board stating therein the reasons for such objection and requesting for the return of the books of account or other documents.(12) On receipt of the application under sub-section (10) the Board ... may, after giving the applicant an opportunity of being heard, pass such orders as it thinks fir".On a plain reading of the aforesaid provisions it will be clear that ordinarily the books of account or other document that may be seized under an authorisation issued u/sub-s. (1) of s. 132 can be retained by the authorised officer or the concerned ITO for a period of one hundred and eighty days from the date of seizure, whereafter the person from custody such books or documents have been seized or the person to whom such books or documents belong becomes entitled to the return of the same unless the reasons for any extended retention are recorded in writing by the authorized officer the concerned ITO and approval of the Commissioner for such retention is obtained. In other words two conditions must be fulfilled before such extended retention becomes permissible in law : (a) reasons in writing must be recorded by the authorised officer or the concerned ITO seeking the Commissioners approval and (b) obtaining of the Commissioners approval for such extended retention and if either of these conditions is not fulfilled such extended retention will become unlawful and the concerned person (i.e. the person from whose custody such books or documents have been seized or the person to whom those belong) acquires a right to the return of the same forthwith. It is true that sub-s. (8) does not in terms provide that the Commissioners approval or the recorded reasons on which it might be based should be communicated to the concerned person but in our view since the person concerned is bound to be materially prejudiced in the enforcement of his right to have such books and documents returned to him by being kept ignorant about the factum of fulfilment of either of the conditions it is obligatory upon the revenue to communicate the Commissioners approval as also the recorded reasons to the person concerned. In the absence of such communication the Commissioners decision according his approval will not become effective.5. Moreover, sub-s. (10) confers upon the person legally entitled to the return to the seized books and documents a right to object to the approvals given by the Commissioner u/sub-s. (8) by making an application to the Central Board stating therein the reasons for such objection and u/sub-s. (12) it is provided that the Central Board may, after giving the application an opportunity of being heard pass such orders as it thinks fit. It is obvious that without the knowledge of the factum of the Commissioners approval as also of the recorded reasons on the basis of which such approval has been obtained it will not be possible for the person to whom the seized books or documents belong to make any effective objection to the approval before the Board and get back his books or documents. In our view the scheme of sum-ss. (8), (10) and (12) of s. 132 makes it amply clear that there is a statutory obligations on the revenue to communicate to the person concerned not merely the commissioners approval but the recorded reasons on which the same has been obtained and that such communication must be made as expeditiously as possible after the passing of the order of approval by the Commissioner and in default of such expeditious communication any further retention of the seized books or document would become in valid and unlawful. It is obvious that obligation arises in regard to every approval of the Commissioner that might have been accorded from time to time.
### Response:
0
### Explanation:
On a plain reading of the aforesaid provisions it will be clear that ordinarily the books of account or other document that may be seized under an authorisation issued u/sub-s. (1) of s. 132 can be retained by the authorised officer or the concerned ITO for a period of one hundred and eighty days from the date of seizure, whereafter the person from custody such books or documents have been seized or the person to whom such books or documents belong becomes entitled to the return of the same unless the reasons for any extended retention are recorded in writing by the authorized officer the concerned ITO and approval of the Commissioner for such retention is obtained. In other words two conditions must be fulfilled before such extended retention becomes permissible in law : (a) reasons in writing must be recorded by the authorised officer or the concerned ITO seeking the Commissioners approval and (b) obtaining of the Commissioners approval for such extended retention and if either of these conditions is not fulfilled such extended retention will become unlawful and the concerned person (i.e. the person from whose custody such books or documents have been seized or the person to whom those belong) acquires a right to the return of the same forthwith. It is true that sub-s. (8) does not in terms provide that the Commissioners approval or the recorded reasons on which it might be based should be communicated to the concerned person but in our view since the person concerned is bound to be materially prejudiced in the enforcement of his right to have such books and documents returned to him by being kept ignorant about the factum of fulfilment of either of the conditions it is obligatory upon the revenue to communicate the Commissioners approval as also the recorded reasons to the person concerned. In the absence of such communication the Commissioners decision according his approval will not become effective.5. Moreover, sub-s. (10) confers upon the person legally entitled to the return to the seized books and documents a right to object to the approvals given by the Commissioner u/sub-s. (8) by making an application to the Central Board stating therein the reasons for such objection and u/sub-s. (12) it is provided that the Central Board may, after giving the application an opportunity of being heard pass such orders as it thinks fit. It is obvious that without the knowledge of the factum of the Commissioners approval as also of the recorded reasons on the basis of which such approval has been obtained it will not be possible for the person to whom the seized books or documents belong to make any effective objection to the approval before the Board and get back his books or documents. In our view the scheme of sum-ss. (8), (10) and (12) of s. 132 makes it amply clear that there is a statutory obligations on the revenue to communicate to the person concerned not merely the commissioners approval but the recorded reasons on which the same has been obtained and that such communication must be made as expeditiously as possible after the passing of the order of approval by the Commissioner and in default of such expeditious communication any further retention of the seized books or document would become in valid and unlawful. It is obvious that obligation arises in regard to every approval of the Commissioner that might have been accorded from time to time.
|
Smt. Rukmani Devi and Others Vs. Narendra Lal Gupta | attack in different proceedings. It is well-settled that the decision of the probate court is a judgment in rem. The High Court rightly held that till the order granting probate remains in force it is conclusive as to the execution and validity of the will till the grant of probate is revoked. Apart from the fact that a decision of the probate court world be a judgment in rem not only binding on the parties to the probate proceedings but it will be binding on the whole world. Therefore, a solemn duty is cast on the probate court. Section 41 of the Indian Evidence Act, 1872 provides that a final judgment or order of a competent court in the exercise of probate jurisdiction is conclusive proof of what is decided therein that is about the genuineness of the will. To be precise, a probate granted by a competent court is conclusive of the validity of such will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate. Apart from anything else, the citation having been issued to the appellants and having been served upon them, their failure to enter a caveat to contest the proceedings would preclude them from contesting the validity of the will in other proceedings. In Surinder Kumar v. Gian Chand (1958 SCR 548 : AIR 1957 SC 875 : 1958 SCJ 159 ) this Court allowed an application for admission of additional evidence to place the probate of the will on record. The Court after allowing the application held that since will has been admitted to probate any infirmity in the matter of probate of the will due to the want of proper attestation of the will as required by Section 63(1)(c) of the Indian Succession Act would be removed because the order admitting the will to the probate will operate as a judgment in rem. Therefore the High Court was perfectly justified in reversing the decision of the executing Court directing the respondent to lead evidence to prove the genuineness of the will.3. Mr T. S. Krishnamurthy Iyer, learned counsel, who appeared for the appellants contended that the learned Fifth Additional Judicial Commissioner at Ranchi had no jurisdiction to entertain the petition for grant of probate. Developing this contention, he first pointed that Section 270 of the Indian Succession Act confers jurisdiction on the District Judge to grant probate upon a petition moved before him if at the time of his death, the testator had a fixed place of abode or any property, moveable or immovable, within the jurisdiction of the court. He conceded that deceased Ram Dulari was staying at Mesra as found by the High Court for over 20 years. Therefore Section 270 would be attracted and an application could be made to the court which granted the probate for admitting the will of the deceased to probate. He then referred to the proviso to Section 273 and urged that where the property of the deceased is situated in more than one State, the District Judge in whose jurisdiction the deceased had a fixed place of abode would be entitled to grant probate provided he certifies that the value of the property and estate affected beyond the limits of the State does not exceed Rs 10, 000. It was then pointed out that in this case the probate is granted by the court at Ranchi in the State of Bihar while the property in respect of which execution is taken out is situated at Katni in the State of Madhya Pradesh and its value exceeds Rs. 10, 000 and therefore the Court of the Fifth Additional Judicial Commissioner at Ranchi had no jurisdiction to grant the probate. It was urged that even if the appellants did not enter a caveat and did not contest the proceedings for grant of probate yet the same having been granted by a court having no jurisdiction, the grant would be invalid and would confer no title on the respondent. Proceeding along it was submitted that if the grant of probate is ab initio void it would be open to the appellants to contest the genuineness of the will when the same is set up in the execution proceedings.4. There is no merit in either of the two submissions. Deceased Ram Dulari was staying with her son, the respondent at Mesra, a place within the jurisdiction of the Court of the Fifth Additional Judicial Commissioner for over 20 years before her death, and therefore the Court had jurisdiction to entertain the application as provided by Section 270 of the Indian Succession Act. Now the question is whether the property situated at Katni exceeds Rs. 10, 000 in value. The jurisdiction would depend upon the value of the property in a State other than the State in which the deceased died. If the jurisdiction depends upon a disputed question of fact such as value of the property, it was necessary for the appellants to enter caveat and contest the jurisdiction of the Court urging that the Court had no jurisdiction because the grant would affect a property in another State exceeding Rs. 10, 000 in value. That having not been done it is not open to the appellants to raise the controversy in the present proceedings. Once the grant is made, Section 273 provides that the grant shall have effect over all the property and estate, movable or immovable of the deceased throughout the State and unless otherwise directed the grant has like effect throughout the other States provided the two contingencies set out in the proviso are satisfied. In this case, the court granting the probate was satisfied in the absence of contest that the value of the property affected by the grant and situated beyond the limits of the State does not exceed Rs. 10, 000 in value. The point is therefore concluded against the appellants and they cannot be permitted to re-agitate the same. | 0[ds]4. There is no merit in either of the two submissions. Deceased Ram Dulari was staying with her son, the respondent at Mesra, a place within the jurisdiction of the Court of the Fifth Additional Judicial Commissioner for over 20 years before her death, and therefore the Court had jurisdiction to entertain the application as provided by Section 270 of the Indian Succession Act. Nowthe question is whether the property situated at Katni exceeds Rs. 10, 000 invalue. The jurisdiction would depend upon the value of the property in a State other than the State in which the deceased died. If the jurisdiction depends upon a disputed question of fact such as value of the property, it was necessary for the appellants to enter caveat and contest the jurisdiction of the Court urging that the Court had no jurisdiction because the grant would affect a property in another State exceeding Rs. 10, 000 in value. That having not been done it is not open to the appellants to raise the controversy in the present proceedings. Once the grant is made, Section 273 provides that the grant shall have effect over all the property and estate, movable or immovable of the deceased throughout the State and unless otherwise directed the grant has like effect throughout the other States provided the two contingencies set out in the proviso are satisfied. In this case, the court granting the probate was satisfied in the absence of contest that the value of the property affected by the grant and situated beyond the limits of the State does not exceed Rs. 10, 000 in value. The point is therefore concluded against the appellants and they cannot be permitted to | 0 | 2,123 | 310 | ### Instruction:
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attack in different proceedings. It is well-settled that the decision of the probate court is a judgment in rem. The High Court rightly held that till the order granting probate remains in force it is conclusive as to the execution and validity of the will till the grant of probate is revoked. Apart from the fact that a decision of the probate court world be a judgment in rem not only binding on the parties to the probate proceedings but it will be binding on the whole world. Therefore, a solemn duty is cast on the probate court. Section 41 of the Indian Evidence Act, 1872 provides that a final judgment or order of a competent court in the exercise of probate jurisdiction is conclusive proof of what is decided therein that is about the genuineness of the will. To be precise, a probate granted by a competent court is conclusive of the validity of such will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate. Apart from anything else, the citation having been issued to the appellants and having been served upon them, their failure to enter a caveat to contest the proceedings would preclude them from contesting the validity of the will in other proceedings. In Surinder Kumar v. Gian Chand (1958 SCR 548 : AIR 1957 SC 875 : 1958 SCJ 159 ) this Court allowed an application for admission of additional evidence to place the probate of the will on record. The Court after allowing the application held that since will has been admitted to probate any infirmity in the matter of probate of the will due to the want of proper attestation of the will as required by Section 63(1)(c) of the Indian Succession Act would be removed because the order admitting the will to the probate will operate as a judgment in rem. Therefore the High Court was perfectly justified in reversing the decision of the executing Court directing the respondent to lead evidence to prove the genuineness of the will.3. Mr T. S. Krishnamurthy Iyer, learned counsel, who appeared for the appellants contended that the learned Fifth Additional Judicial Commissioner at Ranchi had no jurisdiction to entertain the petition for grant of probate. Developing this contention, he first pointed that Section 270 of the Indian Succession Act confers jurisdiction on the District Judge to grant probate upon a petition moved before him if at the time of his death, the testator had a fixed place of abode or any property, moveable or immovable, within the jurisdiction of the court. He conceded that deceased Ram Dulari was staying at Mesra as found by the High Court for over 20 years. Therefore Section 270 would be attracted and an application could be made to the court which granted the probate for admitting the will of the deceased to probate. He then referred to the proviso to Section 273 and urged that where the property of the deceased is situated in more than one State, the District Judge in whose jurisdiction the deceased had a fixed place of abode would be entitled to grant probate provided he certifies that the value of the property and estate affected beyond the limits of the State does not exceed Rs 10, 000. It was then pointed out that in this case the probate is granted by the court at Ranchi in the State of Bihar while the property in respect of which execution is taken out is situated at Katni in the State of Madhya Pradesh and its value exceeds Rs. 10, 000 and therefore the Court of the Fifth Additional Judicial Commissioner at Ranchi had no jurisdiction to grant the probate. It was urged that even if the appellants did not enter a caveat and did not contest the proceedings for grant of probate yet the same having been granted by a court having no jurisdiction, the grant would be invalid and would confer no title on the respondent. Proceeding along it was submitted that if the grant of probate is ab initio void it would be open to the appellants to contest the genuineness of the will when the same is set up in the execution proceedings.4. There is no merit in either of the two submissions. Deceased Ram Dulari was staying with her son, the respondent at Mesra, a place within the jurisdiction of the Court of the Fifth Additional Judicial Commissioner for over 20 years before her death, and therefore the Court had jurisdiction to entertain the application as provided by Section 270 of the Indian Succession Act. Now the question is whether the property situated at Katni exceeds Rs. 10, 000 in value. The jurisdiction would depend upon the value of the property in a State other than the State in which the deceased died. If the jurisdiction depends upon a disputed question of fact such as value of the property, it was necessary for the appellants to enter caveat and contest the jurisdiction of the Court urging that the Court had no jurisdiction because the grant would affect a property in another State exceeding Rs. 10, 000 in value. That having not been done it is not open to the appellants to raise the controversy in the present proceedings. Once the grant is made, Section 273 provides that the grant shall have effect over all the property and estate, movable or immovable of the deceased throughout the State and unless otherwise directed the grant has like effect throughout the other States provided the two contingencies set out in the proviso are satisfied. In this case, the court granting the probate was satisfied in the absence of contest that the value of the property affected by the grant and situated beyond the limits of the State does not exceed Rs. 10, 000 in value. The point is therefore concluded against the appellants and they cannot be permitted to re-agitate the same.
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4. There is no merit in either of the two submissions. Deceased Ram Dulari was staying with her son, the respondent at Mesra, a place within the jurisdiction of the Court of the Fifth Additional Judicial Commissioner for over 20 years before her death, and therefore the Court had jurisdiction to entertain the application as provided by Section 270 of the Indian Succession Act. Nowthe question is whether the property situated at Katni exceeds Rs. 10, 000 invalue. The jurisdiction would depend upon the value of the property in a State other than the State in which the deceased died. If the jurisdiction depends upon a disputed question of fact such as value of the property, it was necessary for the appellants to enter caveat and contest the jurisdiction of the Court urging that the Court had no jurisdiction because the grant would affect a property in another State exceeding Rs. 10, 000 in value. That having not been done it is not open to the appellants to raise the controversy in the present proceedings. Once the grant is made, Section 273 provides that the grant shall have effect over all the property and estate, movable or immovable of the deceased throughout the State and unless otherwise directed the grant has like effect throughout the other States provided the two contingencies set out in the proviso are satisfied. In this case, the court granting the probate was satisfied in the absence of contest that the value of the property affected by the grant and situated beyond the limits of the State does not exceed Rs. 10, 000 in value. The point is therefore concluded against the appellants and they cannot be permitted to
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EX NAVY DIRECT ENTRY ARTIFICERS ASSO Vs. THE UNION OF INDIA MINISTRY OF DEFENCE REPRESENTED BY THE SECRETARY | Reserve after coming into force of the said policy—as that establishment did not exist anymore and the strength of establishment of the Indian Navy stood reduced to that extent. Indisputably, the Sailors appointed prior to 3-7-1976, had the option of continuing on the Fleet Reserve Service after expiration of their active service/empanelment period. As noted earlier, in respect of each applicants the appointment letter mentions the period of appointment as 10 years of initial active service and 10 years thereafter as Fleet Reserve Service, if required. The option to continue on the Fleet Reserve Service could not be offered to these applicants and similarly placed Sailors, by the Department, after expiration of their empanelment period of 10 years or less than 15 years as the case may be. It is for that reason, such Sailors were simply discharged on expiration of their active service/empanelment period. In other words, on account of discontinuation of the Fleet Reserve establishment of the Indian Navy, in terms of Policy dated 3-7-1976 it has entailed in reducing the strength of establishment of the Indian Navy to that extent.xxx xxx xxx36. Thus understood, all Sailors appointed prior to 3-7-1976 and whose tenure of initial active service/empanelment period expired on or after 3-7-1976 may be eligible for a special pension under Regulation 95, subject, however, to fulfilling other requirements. In that, they had not exercised the option to take discharge on expiry of engagement (as per Section 16 of the 1957 Act) and yet were not and could not be drafted by the competent authority to the Fleet Reserve because of the policy of discontinuing the Fleet Reserve Service w.e.f. 3-7-1976. The cases of such Sailors (not limited to the original applicants before the Tribunal) must be considered by the competent authority within three months for grant of a“special pension” from three years prior to the date of application made by the respective Sailor and release payment after giving adjustment of gratuity and death-cum-retirement-gratuity (DCRG) already paid to them from arrears. They shall be entitled for interest @ 9% p.a. on the arrears, till the date of payment.” 28.We, thus, answer question no. 1 in the negative and hold that the appellants are not entitled to count 50% of the Fleet Reserve as they were never drafted into the said reserve. Consequently, the appellants are not entitled to reservist pension. However, their cases would be considered for grant of special pension on same lines as was done in T.R. Das judgment and directed in para 36 of the said judgment. Question No. 2 - Whether the applicants Nos. 2 to 5 were entitled to be treated at par with the Apprentice Entry Artificers for pension purposes only on the ground that both of them belong to the same homogeneous class of Artificers?29.Insofar as Apprentice Entry Artificers are concerned they are getting pension and the appellants’ claim that since Artificer is one homogeneous class, whether the Entry thereto is after completing the Apprenticeship course or it is a direct entry (as in the case of Appellants) all the Artificers are to be treated alike. There is no quarrel about this proposition. However, in the instant case, we are concerned with the question as to whether the appellants are eligible for service pension even after they have rendered only 10 years of service (as they are held not entitled to count any period of Fleet Reserve in which they were never drafted). Had Apprentice Artificers also got the pension on rendition of 10 years’ service, there would have been some force in the argument of the appellants. However, that is not so. As already noted above, insofar as Apprentice Entry Artificers are concerned, they had undergone 4 years’ training in Naval establishment. Thereafter, they were advanced to the rank of Artificer V and their initial engagement of 10 years’ active service commenced. After one year in the rank of Artificer Vth Class, these Apprentice Entry Artificers were advanced to the rank of Artificer acting IVth Class. In their cases, the training period of four years has been counted for considering their eligibility for the purpose of pension. This has happened pursuant to the judgment of this Court in Anuj Kumar Dey & Anr. v. Union of India & Ors. 3 . In the cases of Apprentice Entry Artificers, the Government had refused to reckon the period for the purpose of pension. The question before this court was as to whether the training period spent on Apprentice Artificers was liable to be taken into account for pension purposes. The Court decided the question in favour of the Apprentice Entry Artificers. Thus, these Apprentice Entry Artificers became entitled to pension on the inclusion of training period towards the service. Their case is, therefore, entirely different from the appellant’ who are Direct Entry Artificers and had no benefit of such training.30.An attempt was made by learned counsel for appellants to argue that Anuj Kumar Dey does not lay down correct law as the training period could not have been reckoned for calculating qualifying period for pension. However, it is not open to the appellants to raise such an argument. In the first place, this argument would not enure to the benefit of the appellants as it would not entitle them to pension in any case. Even if the contention of the appellants is presumed as correct, the only effect thereof would be to hold that even Apprentice Entry Artificer are not entitled to pension. We may note, however, that learned counsel for appellants was candid in his submission that he did not want Apprentice Entry Artificers to be deprived of their pension. Secondly, in any case, in the absence of Apprentice Entry Artificers, such an argument cannot be considered. Thirdly, the law laid down in Anuj Kumar Dey has held the filed for more than 20 years and there is no reason to upset the same. For all these reasons, we reject the contention and answer Question no. (2) against the appellants. | 0[ds]is clear from the above that liability to serve in the Indian Fleet Reserve, if required, as stipulated in Regulation 269, is only when such a Sailor is drafted into Indian Fleet Reserve. There has to be, thus, a positive act of enrolment in the Fleet Reserve. A person who is enrolled as Artificer in the Indian Navy and completes 10of service, cannot presume that he stands automatically enrolled in Fleetfar as Appellant Nos. 2 to 5 are concerned, there was no such enrolment in Fleetfact, the appellants were conscious of the aforesaid position. That was the reason that Principle of Promissory Estoppel was invoked on the ground that since their enrolment was prior to July 03,1976, the decision of the Government of India to discontinue transfer of Sailors into Fleet Reserve as contained in communication dated July 03,1976 is not binding on them. Even if we proceed on that basis, the legal position that has been culled out from the relevant statutory provision and enumerated above, clearly shows that there was no promise held out to these appellants that after the completion of continuous service of 10 years as Sailors, they would be drafted into Fleet Reserve. The Tribunal has correctly remarked that at the time of initial enrolment no recruit can be given any guarantee/promise of his being enrolled into Fleet Reserve as his performance in the active service and recommendations he receives would decide his eligibility for enrolment into Fleet Reserve. Therefore, even prior to the promulgation of policy for discontinuance of drafting into Fleet Reserve from 1976, Respondent Nos. 1 and 2 were clearly at liberty to decide if a Sailor is to be enrolled into Fleet Reserve or not.the absence of any such assurance of enrolment of drafting into Fleet Reserve, at the time of initial recruitment, the Principle of Promissory Estoppel cannot be invoked. The Tribunal has, in this behalf, taken note of certainof this Court and on that basis rightly concluded that mere recruitment/enrolment for active as well as reserve service without making any order of transfer to Indian Fleet Reserve under Regulation 269 of Navy Regulation Part III as well as Regulations of Indian Fleet Reserve, it cannot be treated that any promise was accorded to the appellants about drafting into Fleet Reserve, at anytime. We would, at this juncture, like to reproduce para 31 of T.R. Das case.The original applicants contend that if the Government Policy dated 3-7-1976 is applied to the serving Sailors, inevitably, it will result in retrospective application thereof to their detriment. That is forbidden by Section 184-A of the Act. This argument does not commend to us. In that, the effect of the Government Policy is to disband the establishment of the Reserve Fleet Service with effect from 3-7-1976. As found earlier, drafting of Sailors to the Reserve Fleet Service was not automatic, but dependent on an express order to be passed by the competent authority in that behalf on case-to-case basis. The Sailors did not have a vested or accrued right for being placed in the Reserve Fleet Service. Hence, no right of the Sailors in active service was affected or taken away because of the Policy dated, thus, answer question no. 1 in the negative and hold that the appellants are not entitled to count 50% of the Fleet Reserve as they were never drafted into the said reserve. Consequently, the appellants are not entitled to reservist pension. However, their cases would be considered for grant of special pension on same lines as was done in T.R. Das judgment and directed in para 36 of the said judgment.Apprentice Artificers also got the pension on rendition of 10service, there would have been some force in the argument of the appellants. However, that is not so. As already noted above, insofar as Apprentice Entry Artificers are concerned, they had undergone 4training in Naval establishment. Thereafter, they were advanced to the rank of Artificer V and their initial engagement of 10active service commenced. After one year in the rank of Artificer Vth Class, these Apprentice Entry Artificers were advanced to the rank of Artificer acting IVth Class. In their cases, the training period of four years has been counted for considering their eligibility for the purpose of pension. This has happened pursuant to the judgment of this Court in Anuj Kumar Dey & Anr. v. Union of India &. In the cases of Apprentice Entry Artificers, the Government had refused to reckon the period for the purpose of pension. The question before this court was as to whether the training period spent on Apprentice Artificers was liable to be taken into account for pension purposes. The Court decided the question in favour of the Apprentice Entry Artificers. Thus, these Apprentice Entry Artificers became entitled to pension on the inclusion of training period towards the service. Their case is, therefore, entirely different from thewho are Direct Entry Artificers and had no benefit of such training.30.An attempt was made by learned counsel for appellants to argue that Anuj Kumar Dey does not lay down correct law as the training period could not have been reckoned for calculating qualifying period for pension.However, it is not open to the appellants to raise such an argument. In the first place, this argument would not enure to the benefit of the appellants as it would not entitle them to pension in any case. Even if the contention of the appellants is presumed as correct, the only effect thereof would be to hold that even Apprentice EntryArtificer are not entitled to pension. We may note, however, that learned counsel for appellants was candid in his submission that he did not want Apprentice Entry Artificers to be deprived of their pension. Secondly, in any case, in the absence of Apprentice Entry Artificers, such an argument cannot be considered. Thirdly, the law laid down in Anuj Kumar Dey has held the filed for more than 20 years and there is no reason to upset the same. For all these reasons, we reject the contention and answer Question no. (2) against the appellants. | 0 | 7,596 | 1,120 | ### Instruction:
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Reserve after coming into force of the said policy—as that establishment did not exist anymore and the strength of establishment of the Indian Navy stood reduced to that extent. Indisputably, the Sailors appointed prior to 3-7-1976, had the option of continuing on the Fleet Reserve Service after expiration of their active service/empanelment period. As noted earlier, in respect of each applicants the appointment letter mentions the period of appointment as 10 years of initial active service and 10 years thereafter as Fleet Reserve Service, if required. The option to continue on the Fleet Reserve Service could not be offered to these applicants and similarly placed Sailors, by the Department, after expiration of their empanelment period of 10 years or less than 15 years as the case may be. It is for that reason, such Sailors were simply discharged on expiration of their active service/empanelment period. In other words, on account of discontinuation of the Fleet Reserve establishment of the Indian Navy, in terms of Policy dated 3-7-1976 it has entailed in reducing the strength of establishment of the Indian Navy to that extent.xxx xxx xxx36. Thus understood, all Sailors appointed prior to 3-7-1976 and whose tenure of initial active service/empanelment period expired on or after 3-7-1976 may be eligible for a special pension under Regulation 95, subject, however, to fulfilling other requirements. In that, they had not exercised the option to take discharge on expiry of engagement (as per Section 16 of the 1957 Act) and yet were not and could not be drafted by the competent authority to the Fleet Reserve because of the policy of discontinuing the Fleet Reserve Service w.e.f. 3-7-1976. The cases of such Sailors (not limited to the original applicants before the Tribunal) must be considered by the competent authority within three months for grant of a“special pension” from three years prior to the date of application made by the respective Sailor and release payment after giving adjustment of gratuity and death-cum-retirement-gratuity (DCRG) already paid to them from arrears. They shall be entitled for interest @ 9% p.a. on the arrears, till the date of payment.” 28.We, thus, answer question no. 1 in the negative and hold that the appellants are not entitled to count 50% of the Fleet Reserve as they were never drafted into the said reserve. Consequently, the appellants are not entitled to reservist pension. However, their cases would be considered for grant of special pension on same lines as was done in T.R. Das judgment and directed in para 36 of the said judgment. Question No. 2 - Whether the applicants Nos. 2 to 5 were entitled to be treated at par with the Apprentice Entry Artificers for pension purposes only on the ground that both of them belong to the same homogeneous class of Artificers?29.Insofar as Apprentice Entry Artificers are concerned they are getting pension and the appellants’ claim that since Artificer is one homogeneous class, whether the Entry thereto is after completing the Apprenticeship course or it is a direct entry (as in the case of Appellants) all the Artificers are to be treated alike. There is no quarrel about this proposition. However, in the instant case, we are concerned with the question as to whether the appellants are eligible for service pension even after they have rendered only 10 years of service (as they are held not entitled to count any period of Fleet Reserve in which they were never drafted). Had Apprentice Artificers also got the pension on rendition of 10 years’ service, there would have been some force in the argument of the appellants. However, that is not so. As already noted above, insofar as Apprentice Entry Artificers are concerned, they had undergone 4 years’ training in Naval establishment. Thereafter, they were advanced to the rank of Artificer V and their initial engagement of 10 years’ active service commenced. After one year in the rank of Artificer Vth Class, these Apprentice Entry Artificers were advanced to the rank of Artificer acting IVth Class. In their cases, the training period of four years has been counted for considering their eligibility for the purpose of pension. This has happened pursuant to the judgment of this Court in Anuj Kumar Dey & Anr. v. Union of India & Ors. 3 . In the cases of Apprentice Entry Artificers, the Government had refused to reckon the period for the purpose of pension. The question before this court was as to whether the training period spent on Apprentice Artificers was liable to be taken into account for pension purposes. The Court decided the question in favour of the Apprentice Entry Artificers. Thus, these Apprentice Entry Artificers became entitled to pension on the inclusion of training period towards the service. Their case is, therefore, entirely different from the appellant’ who are Direct Entry Artificers and had no benefit of such training.30.An attempt was made by learned counsel for appellants to argue that Anuj Kumar Dey does not lay down correct law as the training period could not have been reckoned for calculating qualifying period for pension. However, it is not open to the appellants to raise such an argument. In the first place, this argument would not enure to the benefit of the appellants as it would not entitle them to pension in any case. Even if the contention of the appellants is presumed as correct, the only effect thereof would be to hold that even Apprentice Entry Artificer are not entitled to pension. We may note, however, that learned counsel for appellants was candid in his submission that he did not want Apprentice Entry Artificers to be deprived of their pension. Secondly, in any case, in the absence of Apprentice Entry Artificers, such an argument cannot be considered. Thirdly, the law laid down in Anuj Kumar Dey has held the filed for more than 20 years and there is no reason to upset the same. For all these reasons, we reject the contention and answer Question no. (2) against the appellants.
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required, as stipulated in Regulation 269, is only when such a Sailor is drafted into Indian Fleet Reserve. There has to be, thus, a positive act of enrolment in the Fleet Reserve. A person who is enrolled as Artificer in the Indian Navy and completes 10of service, cannot presume that he stands automatically enrolled in Fleetfar as Appellant Nos. 2 to 5 are concerned, there was no such enrolment in Fleetfact, the appellants were conscious of the aforesaid position. That was the reason that Principle of Promissory Estoppel was invoked on the ground that since their enrolment was prior to July 03,1976, the decision of the Government of India to discontinue transfer of Sailors into Fleet Reserve as contained in communication dated July 03,1976 is not binding on them. Even if we proceed on that basis, the legal position that has been culled out from the relevant statutory provision and enumerated above, clearly shows that there was no promise held out to these appellants that after the completion of continuous service of 10 years as Sailors, they would be drafted into Fleet Reserve. The Tribunal has correctly remarked that at the time of initial enrolment no recruit can be given any guarantee/promise of his being enrolled into Fleet Reserve as his performance in the active service and recommendations he receives would decide his eligibility for enrolment into Fleet Reserve. Therefore, even prior to the promulgation of policy for discontinuance of drafting into Fleet Reserve from 1976, Respondent Nos. 1 and 2 were clearly at liberty to decide if a Sailor is to be enrolled into Fleet Reserve or not.the absence of any such assurance of enrolment of drafting into Fleet Reserve, at the time of initial recruitment, the Principle of Promissory Estoppel cannot be invoked. The Tribunal has, in this behalf, taken note of certainof this Court and on that basis rightly concluded that mere recruitment/enrolment for active as well as reserve service without making any order of transfer to Indian Fleet Reserve under Regulation 269 of Navy Regulation Part III as well as Regulations of Indian Fleet Reserve, it cannot be treated that any promise was accorded to the appellants about drafting into Fleet Reserve, at anytime. We would, at this juncture, like to reproduce para 31 of T.R. Das case.The original applicants contend that if the Government Policy dated 3-7-1976 is applied to the serving Sailors, inevitably, it will result in retrospective application thereof to their detriment. That is forbidden by Section 184-A of the Act. This argument does not commend to us. In that, the effect of the Government Policy is to disband the establishment of the Reserve Fleet Service with effect from 3-7-1976. As found earlier, drafting of Sailors to the Reserve Fleet Service was not automatic, but dependent on an express order to be passed by the competent authority in that behalf on case-to-case basis. The Sailors did not have a vested or accrued right for being placed in the Reserve Fleet Service. Hence, no right of the Sailors in active service was affected or taken away because of the Policy dated, thus, answer question no. 1 in the negative and hold that the appellants are not entitled to count 50% of the Fleet Reserve as they were never drafted into the said reserve. Consequently, the appellants are not entitled to reservist pension. However, their cases would be considered for grant of special pension on same lines as was done in T.R. Das judgment and directed in para 36 of the said judgment.Apprentice Artificers also got the pension on rendition of 10service, there would have been some force in the argument of the appellants. However, that is not so. As already noted above, insofar as Apprentice Entry Artificers are concerned, they had undergone 4training in Naval establishment. Thereafter, they were advanced to the rank of Artificer V and their initial engagement of 10active service commenced. After one year in the rank of Artificer Vth Class, these Apprentice Entry Artificers were advanced to the rank of Artificer acting IVth Class. In their cases, the training period of four years has been counted for considering their eligibility for the purpose of pension. This has happened pursuant to the judgment of this Court in Anuj Kumar Dey & Anr. v. Union of India &. In the cases of Apprentice Entry Artificers, the Government had refused to reckon the period for the purpose of pension. The question before this court was as to whether the training period spent on Apprentice Artificers was liable to be taken into account for pension purposes. The Court decided the question in favour of the Apprentice Entry Artificers. Thus, these Apprentice Entry Artificers became entitled to pension on the inclusion of training period towards the service. Their case is, therefore, entirely different from thewho are Direct Entry Artificers and had no benefit of such training.30.An attempt was made by learned counsel for appellants to argue that Anuj Kumar Dey does not lay down correct law as the training period could not have been reckoned for calculating qualifying period for pension.However, it is not open to the appellants to raise such an argument. In the first place, this argument would not enure to the benefit of the appellants as it would not entitle them to pension in any case. Even if the contention of the appellants is presumed as correct, the only effect thereof would be to hold that even Apprentice EntryArtificer are not entitled to pension. We may note, however, that learned counsel for appellants was candid in his submission that he did not want Apprentice Entry Artificers to be deprived of their pension. Secondly, in any case, in the absence of Apprentice Entry Artificers, such an argument cannot be considered. Thirdly, the law laid down in Anuj Kumar Dey has held the filed for more than 20 years and there is no reason to upset the same. For all these reasons, we reject the contention and answer Question no. (2) against the appellants.
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Chimajirao Kanhojirao Shirke Vs. Oriental Fire & Genl. Insurance Co.Ltd | shown in that policy." * 4. This finding is recorded in view of the stand taken by the Insurance Company before the trial court, namely, that the recording of the words "unlimited personal injury" was wrongly recorded therein. In support of this, reference is made by learned counsel for the appellants to the written statement filed by the Insurance Company, which is to the following effect "The noting of unlimited personal injury is redundant, the premium is accepted either to cover property damage or personal injury. It is due to oversight/mistake, the wording unlimited personal injury is typed against the additional premium of Rs. 134. ...." * 5. Being aggrieved by the order of the trial court, the Insurance Company filed an appeal before the High Court and by means of the impugned order the High Court set aside the judgment of the trial court and allowed the appeal 6. The High Court holds that the Insurance Company is not liable to pay any compensation to the plaintiffs (appellants herein) on account of death of the insured, Mahendra under the terms of the said policy. This conclusion is drawn in view of the following findings "Therefore, ultimately what we have to see in this case is the object of the payment of Rs. 134 paid by the late Mahendra and accepted by the Insurance Company. As we read between the lines of the decisions referred to, we are of the view that the amount has been paid for covering the risk in excess of statutory liability in regard to the third-party risks and not the personal injury or death of the insured." * 7. Learned Senior Counsel for the Insurance Company, Mr. Jitendra Sharma has referred us to Sections 94, 95 and Sections I and II of the insurance policy to show that under the Motor Vehicles Act, 1939 it was obligatory for a person running a commercial truck to have it insured by virtue of Section 94 and Section 95 refers to the requirements of the policy and the limits of liability. By virtue of that, the insurance company insures a person to the extent specified in sub-section (2) against any liability which may be incurred by the insured in respect of death or bodily injury to any person or damage to any property of third party, which includes death and bodily injury to any passenger of a public service vehicle. In other words, in a third-party insurance the insured is indemnified against any loss which may occasion on account of any accident of the vehicle which he insures, but it does not cover the insured for claiming any amount from the insurance company. In this background, he referred to the insurance policy itself to show that the words "unlimited personal injury and property damages" up to 10 lakhs referred in it relate to the insured liability for which he would be indemnified but only in respect of a third party, that is to say, the word "personal" would qualify the injury or death of a third party and not of the insured. Scrutinizing the schedule of the insurance policy, he has referred to the premiums paid by the insured. The first entry is of Rs. 911, which according to him includes the third party, but it would be up to the extent of statutory liability, the next is the insurers estimated value, the third is additional tonnage, the fourth is under our consideration. Similarly, the fifth is for strike and riot and the last is legal liability for workmen for which the premiums are paid. It is in this context with reference to the aforesaid sections of the Act and under the policy it is submitted that the words "unlimited personal" qualify unlimited for death and injury of a third party and would not cover the insured person personally. The submission, prima facie, seems to be plausible but the question for our consideration is, whether on the facts and the circumstances of this case such an interpretation could be given to the insurance policy. In this connection we may refer to what is the stand of the Insurance Company in its pleadings and submissionsIn the written statement filed by the Insurance Company, relevant portion of which we have already quoted above, the stand taken therein is that it is due to oversight/mistake that the wording "unlimited personal injury" is typed against the additional premium of Rs. 134. 8. This stand is contrary to the submissions made by the learned counsel for the respondent. It has not been the case of the Insurance Company that notwithstanding the words used therein, namely, "unlimited personal injury" it would in terms of the policy be limited to the liability of a third party. On the contrary, faced with the submission that such words would make the insurer liable even to the insured personally, the said plea and submission was made in the trial court. Once the submission and the stand is that the writing is on account of oversight and mistake, the aforesaid submission made before us cannot be sustained. 9. In view of the aforesaid conclusion, we have no hesitation to hold that the High Court committed an error in setting aside the finding given by the trial court, specially in view of the said specific plea taken in the written statement. The High Court felt that since it is a legal matter, it could be adjudicated notwithstanding a different stand in its pleading. This approach was not proper. Once a stand in fact is taken, that fact could not be controverted by any legal proposition. In the present case, the Insurance Company has not led any evidence to dissolve the stand taken in the written statement that it was done by mistake nor was there any application to amend such pleadings. In view of this, the High Court was not correct to decide the issue through legal inferences dehors of and without adverting to the glaring facts on the record. | 1[ds]we have no hesitation to hold that the High Court committed an error in setting aside the finding given by the trial court, specially in view of the said specific plea taken in the written statement. The High Court felt that since it is a legal matter, it could be adjudicated notwithstanding a different stand in its pleading. This approach was not proper. Once a stand in fact is taken, that fact could not be controverted by any legal proposition. In the present case, the Insurance Company has not led any evidence to dissolve the stand taken in the written statement that it was done by mistake nor was there any application to amend such pleadings. In view of this, the High Court was not correct to decide the issue through legal inferences dehors of and without adverting to the glaring facts on the record. | 1 | 1,550 | 160 | ### Instruction:
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shown in that policy." * 4. This finding is recorded in view of the stand taken by the Insurance Company before the trial court, namely, that the recording of the words "unlimited personal injury" was wrongly recorded therein. In support of this, reference is made by learned counsel for the appellants to the written statement filed by the Insurance Company, which is to the following effect "The noting of unlimited personal injury is redundant, the premium is accepted either to cover property damage or personal injury. It is due to oversight/mistake, the wording unlimited personal injury is typed against the additional premium of Rs. 134. ...." * 5. Being aggrieved by the order of the trial court, the Insurance Company filed an appeal before the High Court and by means of the impugned order the High Court set aside the judgment of the trial court and allowed the appeal 6. The High Court holds that the Insurance Company is not liable to pay any compensation to the plaintiffs (appellants herein) on account of death of the insured, Mahendra under the terms of the said policy. This conclusion is drawn in view of the following findings "Therefore, ultimately what we have to see in this case is the object of the payment of Rs. 134 paid by the late Mahendra and accepted by the Insurance Company. As we read between the lines of the decisions referred to, we are of the view that the amount has been paid for covering the risk in excess of statutory liability in regard to the third-party risks and not the personal injury or death of the insured." * 7. Learned Senior Counsel for the Insurance Company, Mr. Jitendra Sharma has referred us to Sections 94, 95 and Sections I and II of the insurance policy to show that under the Motor Vehicles Act, 1939 it was obligatory for a person running a commercial truck to have it insured by virtue of Section 94 and Section 95 refers to the requirements of the policy and the limits of liability. By virtue of that, the insurance company insures a person to the extent specified in sub-section (2) against any liability which may be incurred by the insured in respect of death or bodily injury to any person or damage to any property of third party, which includes death and bodily injury to any passenger of a public service vehicle. In other words, in a third-party insurance the insured is indemnified against any loss which may occasion on account of any accident of the vehicle which he insures, but it does not cover the insured for claiming any amount from the insurance company. In this background, he referred to the insurance policy itself to show that the words "unlimited personal injury and property damages" up to 10 lakhs referred in it relate to the insured liability for which he would be indemnified but only in respect of a third party, that is to say, the word "personal" would qualify the injury or death of a third party and not of the insured. Scrutinizing the schedule of the insurance policy, he has referred to the premiums paid by the insured. The first entry is of Rs. 911, which according to him includes the third party, but it would be up to the extent of statutory liability, the next is the insurers estimated value, the third is additional tonnage, the fourth is under our consideration. Similarly, the fifth is for strike and riot and the last is legal liability for workmen for which the premiums are paid. It is in this context with reference to the aforesaid sections of the Act and under the policy it is submitted that the words "unlimited personal" qualify unlimited for death and injury of a third party and would not cover the insured person personally. The submission, prima facie, seems to be plausible but the question for our consideration is, whether on the facts and the circumstances of this case such an interpretation could be given to the insurance policy. In this connection we may refer to what is the stand of the Insurance Company in its pleadings and submissionsIn the written statement filed by the Insurance Company, relevant portion of which we have already quoted above, the stand taken therein is that it is due to oversight/mistake that the wording "unlimited personal injury" is typed against the additional premium of Rs. 134. 8. This stand is contrary to the submissions made by the learned counsel for the respondent. It has not been the case of the Insurance Company that notwithstanding the words used therein, namely, "unlimited personal injury" it would in terms of the policy be limited to the liability of a third party. On the contrary, faced with the submission that such words would make the insurer liable even to the insured personally, the said plea and submission was made in the trial court. Once the submission and the stand is that the writing is on account of oversight and mistake, the aforesaid submission made before us cannot be sustained. 9. In view of the aforesaid conclusion, we have no hesitation to hold that the High Court committed an error in setting aside the finding given by the trial court, specially in view of the said specific plea taken in the written statement. The High Court felt that since it is a legal matter, it could be adjudicated notwithstanding a different stand in its pleading. This approach was not proper. Once a stand in fact is taken, that fact could not be controverted by any legal proposition. In the present case, the Insurance Company has not led any evidence to dissolve the stand taken in the written statement that it was done by mistake nor was there any application to amend such pleadings. In view of this, the High Court was not correct to decide the issue through legal inferences dehors of and without adverting to the glaring facts on the record.
### Response:
1
### Explanation:
we have no hesitation to hold that the High Court committed an error in setting aside the finding given by the trial court, specially in view of the said specific plea taken in the written statement. The High Court felt that since it is a legal matter, it could be adjudicated notwithstanding a different stand in its pleading. This approach was not proper. Once a stand in fact is taken, that fact could not be controverted by any legal proposition. In the present case, the Insurance Company has not led any evidence to dissolve the stand taken in the written statement that it was done by mistake nor was there any application to amend such pleadings. In view of this, the High Court was not correct to decide the issue through legal inferences dehors of and without adverting to the glaring facts on the record.
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V. B. Raju Vs. State of Gujarat and Another | 124 for the removal of a Judge of the Supreme Court; (c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India." "222(1) The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court. "(2) When a Judge has been or is so transferred, he shall, during the period he serves, after the commencement of the Constitution (Fifteenth Amendment) Act, 1963, as a Judge of the other High Court, be entitled to receive in addition to his salary such compensatory allowance as may be determined by Parliament by law and, until so determined, such compensatory allowance as the President may by order fix."According to the appellants contentions before the High Court the only source of power conferred on the President to effect the transfer of a Judge from one High Court to another was article 222 read with article 217(1)(c) and the impugned order which was an order flowing from that source of power, therefore amounted to an order of transfer even though it was passed under section 29(1) of the Act which runs thus:"(1). Such of the Judges of the High Court of Bombay holding office immediately before the appointed day as may be determined by President shall on that day cease to be Judges of the High Court at Bombay and become Judges of the High Court of Gujarat."The High Court noted that the Act was passed in pursuance of the powers vested in Parliament under articles 3 and 4 of the Constitution. Article 3 provides, inter alia, for the formation of new States. Under clause (a) thereof Parliament may by law form a new State by separation of territory from any existing State or by uniting two or more existing States or parts thereof or by uniting any territory to a part of any State. Under article 4(1) any law referred to in article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of such law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary. Under clause (2) of article 4 no such law shall be deemed to be an amendment of the Constitution for the purposes of article 368. The learned Single Judge held that an order under section 29 of the Act was an order of "allocation" of Judges of the High Court of Bombay to the two new High Courts and that such allocation did not amount to a transfer within the meaning of article 217(1)(c) or 222(1) of the Constitution. It was in that view of the matter that he dismissed the petition presented by the appellant. In Letters Patent Appeal the Division Bench was of the opinion that although the impugned order amounted to an order of transfer, the transfer effected by it was of a type entirely different from that contemplated by article 222(1). In effect, however, the reasons for dismissal of the appeal were the same as those for which the petition could not succeed before the learned Single Judge. According to the Division Bench the transfer envisaged by article 222 was a transfer in a situation when a Judge of a High Court was sent to another existing High Court for reasons which had nothing to do with the bifurcation or reorganisation of a State and the setting up of a new High Court in consequence, while section 29 of the Act was part of the provisions which were supplemental, incidental or consequential to the formation of the State of Gujarat.It was also argued before the Division Bench that the Government of Gujarat itself had, during the course of its correspondence with the appellant, treated his appointment to the High Court of Gujarat as a transfer from the High Court of Bombay, a fact which was not denied but which, the High Court held, had no bearing on the matter in dispute as there was no plea of estoppel raised in the petition presented by the appellant. 4. After hearing the appellant in person and learned counsel for the respondents we find no substance in the appeal and, broadly speaking, our reasons for so holding coincide with those given by the learned Single Judge and the Division Bench of the High Court, Articles 3 and 4 of the Constitution deal with a special situation and so long as a provision of law promulgated by Parliament can be considered as supplemental, incidental or consequential to the formation of a new State it would be enforceable even though it might amount to an amendment of certain provisions of the Constitution. The provision contained in section 29 of the Act is clearly consequential to the formation of the State of Gujarat and the establishment of a High Court for it. It was for the purpose of setting up that High Court that Judges then serving in the Bombay High Court were, so to say, "allotted" to the High Court of Gujarat; and although their appointment to the Gujarat High Court may partake of some of the characteristics of a transfer, we do not think that they can be said to have been transferred from the Bombay High Court to the Gujarat High Court within the meaning of article 222(1) of the Constitution. The entitlement to compensatory allowance under article 222(2) i s conditional upon the Judge being "so transferred", that is, transferred as envisaged by article 222(1). Since the appellant was "allotted" to the Gujarat High Court on the setting up of that Court, he will not be entitled to claim the compensatory allowance. | 0[ds]4. After hearing the appellant in person and learned counsel for the respondents we find no substance in the appeal and, broadly speaking, our reasons for so holding coincide with those given by the learned Single Judge and the Division Bench of the High Court, Articles 3 and 4 of the Constitution deal with a special situation and so long as a provision of law promulgated by Parliament can be considered as supplemental, incidental or consequential to the formation of a new State it would be enforceable even though it might amount to an amendment of certain provisions of the Constitution. The provision contained in section 29 of the Act is clearly consequential to the formation of the State of Gujarat and the establishment of a High Court for it. It was for the purpose of setting up that High Court that Judges then serving in the Bombay High Court were, so to say, "allotted" to the High Court of Gujarat; and although their appointment to the Gujarat High Court may partake of some of the characteristics of a transfer, we do not think that they can be said to have been transferred from the Bombay High Court to the Gujarat High Court within the meaning of article 222(1) of the Constitution. The entitlement to compensatory allowance under article 222(2) i s conditional upon the Judge being "so transferred", that is, transferred as envisaged by article 222(1). Since the appellant was "allotted" to the Gujarat High Court on the setting up of that Court, he will not be entitled to claim the compensatory allowance. | 0 | 1,682 | 300 | ### Instruction:
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124 for the removal of a Judge of the Supreme Court; (c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India." "222(1) The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court. "(2) When a Judge has been or is so transferred, he shall, during the period he serves, after the commencement of the Constitution (Fifteenth Amendment) Act, 1963, as a Judge of the other High Court, be entitled to receive in addition to his salary such compensatory allowance as may be determined by Parliament by law and, until so determined, such compensatory allowance as the President may by order fix."According to the appellants contentions before the High Court the only source of power conferred on the President to effect the transfer of a Judge from one High Court to another was article 222 read with article 217(1)(c) and the impugned order which was an order flowing from that source of power, therefore amounted to an order of transfer even though it was passed under section 29(1) of the Act which runs thus:"(1). Such of the Judges of the High Court of Bombay holding office immediately before the appointed day as may be determined by President shall on that day cease to be Judges of the High Court at Bombay and become Judges of the High Court of Gujarat."The High Court noted that the Act was passed in pursuance of the powers vested in Parliament under articles 3 and 4 of the Constitution. Article 3 provides, inter alia, for the formation of new States. Under clause (a) thereof Parliament may by law form a new State by separation of territory from any existing State or by uniting two or more existing States or parts thereof or by uniting any territory to a part of any State. Under article 4(1) any law referred to in article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of such law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary. Under clause (2) of article 4 no such law shall be deemed to be an amendment of the Constitution for the purposes of article 368. The learned Single Judge held that an order under section 29 of the Act was an order of "allocation" of Judges of the High Court of Bombay to the two new High Courts and that such allocation did not amount to a transfer within the meaning of article 217(1)(c) or 222(1) of the Constitution. It was in that view of the matter that he dismissed the petition presented by the appellant. In Letters Patent Appeal the Division Bench was of the opinion that although the impugned order amounted to an order of transfer, the transfer effected by it was of a type entirely different from that contemplated by article 222(1). In effect, however, the reasons for dismissal of the appeal were the same as those for which the petition could not succeed before the learned Single Judge. According to the Division Bench the transfer envisaged by article 222 was a transfer in a situation when a Judge of a High Court was sent to another existing High Court for reasons which had nothing to do with the bifurcation or reorganisation of a State and the setting up of a new High Court in consequence, while section 29 of the Act was part of the provisions which were supplemental, incidental or consequential to the formation of the State of Gujarat.It was also argued before the Division Bench that the Government of Gujarat itself had, during the course of its correspondence with the appellant, treated his appointment to the High Court of Gujarat as a transfer from the High Court of Bombay, a fact which was not denied but which, the High Court held, had no bearing on the matter in dispute as there was no plea of estoppel raised in the petition presented by the appellant. 4. After hearing the appellant in person and learned counsel for the respondents we find no substance in the appeal and, broadly speaking, our reasons for so holding coincide with those given by the learned Single Judge and the Division Bench of the High Court, Articles 3 and 4 of the Constitution deal with a special situation and so long as a provision of law promulgated by Parliament can be considered as supplemental, incidental or consequential to the formation of a new State it would be enforceable even though it might amount to an amendment of certain provisions of the Constitution. The provision contained in section 29 of the Act is clearly consequential to the formation of the State of Gujarat and the establishment of a High Court for it. It was for the purpose of setting up that High Court that Judges then serving in the Bombay High Court were, so to say, "allotted" to the High Court of Gujarat; and although their appointment to the Gujarat High Court may partake of some of the characteristics of a transfer, we do not think that they can be said to have been transferred from the Bombay High Court to the Gujarat High Court within the meaning of article 222(1) of the Constitution. The entitlement to compensatory allowance under article 222(2) i s conditional upon the Judge being "so transferred", that is, transferred as envisaged by article 222(1). Since the appellant was "allotted" to the Gujarat High Court on the setting up of that Court, he will not be entitled to claim the compensatory allowance.
### Response:
0
### Explanation:
4. After hearing the appellant in person and learned counsel for the respondents we find no substance in the appeal and, broadly speaking, our reasons for so holding coincide with those given by the learned Single Judge and the Division Bench of the High Court, Articles 3 and 4 of the Constitution deal with a special situation and so long as a provision of law promulgated by Parliament can be considered as supplemental, incidental or consequential to the formation of a new State it would be enforceable even though it might amount to an amendment of certain provisions of the Constitution. The provision contained in section 29 of the Act is clearly consequential to the formation of the State of Gujarat and the establishment of a High Court for it. It was for the purpose of setting up that High Court that Judges then serving in the Bombay High Court were, so to say, "allotted" to the High Court of Gujarat; and although their appointment to the Gujarat High Court may partake of some of the characteristics of a transfer, we do not think that they can be said to have been transferred from the Bombay High Court to the Gujarat High Court within the meaning of article 222(1) of the Constitution. The entitlement to compensatory allowance under article 222(2) i s conditional upon the Judge being "so transferred", that is, transferred as envisaged by article 222(1). Since the appellant was "allotted" to the Gujarat High Court on the setting up of that Court, he will not be entitled to claim the compensatory allowance.
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State of Madhya Pradesh & Anr Vs. Akhilesh Jha & Anr | was no justification to quash the enquiry and to obstruct the disciplinary proceedings which have been convened by the State in exercise of its authority over the respondent. 11. On the other hand, it has been urged on behalf of the first respondent that the charge-sheet is devoid of material particulars, including the date on which the instructions for disbanding the Gunda Squads were issued by the Inspector General of Police as well as the specific role alleged to have been performed by the first respondent in the circumstances leading to the alleged death of the person who was under interrogation. Moreover, it has been submitted that the delay, as a matter of fact, caused prejudice to the first respondent since he was deprived of his opportunities of deputation and promotion at par with his other batch mates. Hence, it has been urged that the delay in conducting the disciplinary proceeding has caused serious prejudice to the first respondent. 12. The charge-sheet was issued to the first respondent in exercise of powers conferred by Rule 10 of the All India Services (Discipline and Appeal) Rules 1969 on 8 June 2016. The charge-sheet which is annexed to the communication issued by the Home Department of the State of Madhya Pradesh contains the following charge: You have violated the Rule 03 of All India Services (Conduct) Rules, 1968 by operating Gunda Squad illegally in the District Alirajpur and by committing indiscipline and violation of directions of the Senior Officers. The aforesaid act of yours is against the provisions of Rule 3 of All India Services (Conduct) Rules, 1968 and the same is punishable under All India Services (Discipline and Appeal) Rules, 1969. The detailed particulars of the aforesaid charges are attached. 13. The statement of charges has been appended to the charge-sheet. The statement of charges indicates that the gravamen of the allegation against the first respondent is that the Inspector General of Police, Indore Zone had issued instructions to all Superintendents of Police that no officer working in the District shall constitute a Gunda Squad and if such a Squad is working, then it must be dissolved immediately. The incident leading to custodial death took place while the individual was in the custody of Police Station Sorwa of District Alirajpur on 3 June 2014. The statement of imputations states, thus: The incident of the death in the police custody happened in PS Sorwa of the District Alirajpur on 03.06.2014. The Superintendent of Police, District Alirajpur had sent Subedar K.P. Singh Tomar working as the Squad In charge to interrogate the suspect deceased Jhingla in Crime No.39/14 Section 307 IPC of the police Station Sorwa. Subedar Tomar inflicted injuries to the deceased Jhingla by assaulting him during interrogation, which led the suspect Jhingla to death. When the aforesaid incident took place, the squad in charge Subedar Tomar and other 05 policemen were suspended on 03.06.2014. In the aforesaid incident, Subedar K.P. Singh Tomar and his all subordinate employees were appointed as the reserve force in the police control room but Shri Akhilesh Jha, the then Superintendent of Police, District Alirajpur had been using all these employees regularly as the Gunda Squad, while Shri Akhilesh Jha the then Superintendent of Police Alirajpur refused To have constituted Gunda Squad in Letter No. SP/Ali/Steno/736/14 dated 15.07.2014. In this regard, the clarification was sought from the then Superintendent of Police, Shri Akhilesh Jha vide letter no. IGP/E/Ka.F-29/47-45-3-A/14 dated 28.09.2014 of the office. 14. The statement of imputations contains a reference to the Duty Register as well as the General Diary at the material time. The list of documents annexed to the charge-sheet refers to 21 documents on the basis of which the charges were intended to be proved. 15. On the basis of the above material which has been placed on the record, it was impossible to come to the conclusion that the charge against the first respondent is vague or ambiguous. The charge-sheet, together with the statement of imputations, contains a detailed elaboration of the allegations against the first respondent and does not leave the recipient in a measure of doubt or ambiguity over the nature of the case he is required to answer in the disciplinary enquiry. The finding that the charge is vague is palpably in error. The Tribunal declined to quash the charge-sheet by its initial order dated 28 July 2016. However, by a subsequent order dated 5 January 2018, it proceeded to do exactly what it had declined to do by its previous order. The Tribunal purportedly did so on the basis that prejudice had been caused to the first respondent by the denial of an opportunity for deputation or for promotion as a result of the pendency of the proceedings. The line of reasoning which weighed with the Tribunal is plainly erroneous. The Tribunal would have been justified in directing the expeditious conclusion of the enquiry, but instead, it proceeded to quash the enquiry in its entirety. This, in our view, was clearly impermissible. Every delay in conducting a disciplinary enquiry does not, ipso facto, lead to the enquiry being vitiated. Whether prejudice is caused to the officer who is being enquired into is a matter which has to be decided on the basis of the circumstances of each case. Prejudice must be demonstrated to have been caused and cannot be a matter of surmise. Apart from submitting that the first respondent was unable to proceed on deputation or to seek promotion, there is no basis on which it could be concluded that his right to defend himself stands prejudicially affected by a delay of two years in concluding the enquiry. The High Court, therefore, in our view, has clearly failed to properly exercise the jurisdiction vested in it by simply affirming the judgment of the Tribunal. The judgment of the Tribunal suffered from basic errors which go to the root of the matter and which have been ignored both by the Tribunal as well as by the High Court. | 1[ds]15. On the basis of the above material which has been placed on the record, it was impossible to come to the conclusion that the charge against the first respondent is vague or ambiguous. The charge-sheet, together with the statement of imputations, contains a detailed elaboration of the allegations against the first respondent and does not leave the recipient in a measure of doubt or ambiguity over the nature of the case he is required to answer in the disciplinary enquiry. The finding that the charge is vague is palpably in error. The Tribunal declined to quash the charge-sheet by its initial order dated 28 July 2016. However, by a subsequent order dated 5 January 2018, it proceeded to do exactly what it had declined to do by its previous order. The Tribunal purportedly did so on the basis that prejudice had been caused to the first respondent by the denial of an opportunity for deputation or for promotion as a result of the pendency of the proceedings. The line of reasoning which weighed with the Tribunal is plainly erroneous. The Tribunal would have been justified in directing the expeditious conclusion of the enquiry, but instead, it proceeded to quash the enquiry in its entirety. This, in our view, was clearly impermissible. Every delay in conducting a disciplinary enquiry does not, ipso facto, lead to the enquiry being vitiated. Whether prejudice is caused to the officer who is being enquired into is a matter which has to be decided on the basis of the circumstances of each case. Prejudice must be demonstrated to have been caused and cannot be a matter of surmise. Apart from submitting that the first respondent was unable to proceed on deputation or to seek promotion, there is no basis on which it could be concluded that his right to defend himself stands prejudicially affected by a delay of two years in concluding the enquiry. The High Court, therefore, in our view, has clearly failed to properly exercise the jurisdiction vested in it by simply affirming the judgment of the Tribunal. The judgment of the Tribunal suffered from basic errors which go to the root of the matter and which have been ignored both by the Tribunal as well as by the High Court. | 1 | 2,022 | 414 | ### Instruction:
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was no justification to quash the enquiry and to obstruct the disciplinary proceedings which have been convened by the State in exercise of its authority over the respondent. 11. On the other hand, it has been urged on behalf of the first respondent that the charge-sheet is devoid of material particulars, including the date on which the instructions for disbanding the Gunda Squads were issued by the Inspector General of Police as well as the specific role alleged to have been performed by the first respondent in the circumstances leading to the alleged death of the person who was under interrogation. Moreover, it has been submitted that the delay, as a matter of fact, caused prejudice to the first respondent since he was deprived of his opportunities of deputation and promotion at par with his other batch mates. Hence, it has been urged that the delay in conducting the disciplinary proceeding has caused serious prejudice to the first respondent. 12. The charge-sheet was issued to the first respondent in exercise of powers conferred by Rule 10 of the All India Services (Discipline and Appeal) Rules 1969 on 8 June 2016. The charge-sheet which is annexed to the communication issued by the Home Department of the State of Madhya Pradesh contains the following charge: You have violated the Rule 03 of All India Services (Conduct) Rules, 1968 by operating Gunda Squad illegally in the District Alirajpur and by committing indiscipline and violation of directions of the Senior Officers. The aforesaid act of yours is against the provisions of Rule 3 of All India Services (Conduct) Rules, 1968 and the same is punishable under All India Services (Discipline and Appeal) Rules, 1969. The detailed particulars of the aforesaid charges are attached. 13. The statement of charges has been appended to the charge-sheet. The statement of charges indicates that the gravamen of the allegation against the first respondent is that the Inspector General of Police, Indore Zone had issued instructions to all Superintendents of Police that no officer working in the District shall constitute a Gunda Squad and if such a Squad is working, then it must be dissolved immediately. The incident leading to custodial death took place while the individual was in the custody of Police Station Sorwa of District Alirajpur on 3 June 2014. The statement of imputations states, thus: The incident of the death in the police custody happened in PS Sorwa of the District Alirajpur on 03.06.2014. The Superintendent of Police, District Alirajpur had sent Subedar K.P. Singh Tomar working as the Squad In charge to interrogate the suspect deceased Jhingla in Crime No.39/14 Section 307 IPC of the police Station Sorwa. Subedar Tomar inflicted injuries to the deceased Jhingla by assaulting him during interrogation, which led the suspect Jhingla to death. When the aforesaid incident took place, the squad in charge Subedar Tomar and other 05 policemen were suspended on 03.06.2014. In the aforesaid incident, Subedar K.P. Singh Tomar and his all subordinate employees were appointed as the reserve force in the police control room but Shri Akhilesh Jha, the then Superintendent of Police, District Alirajpur had been using all these employees regularly as the Gunda Squad, while Shri Akhilesh Jha the then Superintendent of Police Alirajpur refused To have constituted Gunda Squad in Letter No. SP/Ali/Steno/736/14 dated 15.07.2014. In this regard, the clarification was sought from the then Superintendent of Police, Shri Akhilesh Jha vide letter no. IGP/E/Ka.F-29/47-45-3-A/14 dated 28.09.2014 of the office. 14. The statement of imputations contains a reference to the Duty Register as well as the General Diary at the material time. The list of documents annexed to the charge-sheet refers to 21 documents on the basis of which the charges were intended to be proved. 15. On the basis of the above material which has been placed on the record, it was impossible to come to the conclusion that the charge against the first respondent is vague or ambiguous. The charge-sheet, together with the statement of imputations, contains a detailed elaboration of the allegations against the first respondent and does not leave the recipient in a measure of doubt or ambiguity over the nature of the case he is required to answer in the disciplinary enquiry. The finding that the charge is vague is palpably in error. The Tribunal declined to quash the charge-sheet by its initial order dated 28 July 2016. However, by a subsequent order dated 5 January 2018, it proceeded to do exactly what it had declined to do by its previous order. The Tribunal purportedly did so on the basis that prejudice had been caused to the first respondent by the denial of an opportunity for deputation or for promotion as a result of the pendency of the proceedings. The line of reasoning which weighed with the Tribunal is plainly erroneous. The Tribunal would have been justified in directing the expeditious conclusion of the enquiry, but instead, it proceeded to quash the enquiry in its entirety. This, in our view, was clearly impermissible. Every delay in conducting a disciplinary enquiry does not, ipso facto, lead to the enquiry being vitiated. Whether prejudice is caused to the officer who is being enquired into is a matter which has to be decided on the basis of the circumstances of each case. Prejudice must be demonstrated to have been caused and cannot be a matter of surmise. Apart from submitting that the first respondent was unable to proceed on deputation or to seek promotion, there is no basis on which it could be concluded that his right to defend himself stands prejudicially affected by a delay of two years in concluding the enquiry. The High Court, therefore, in our view, has clearly failed to properly exercise the jurisdiction vested in it by simply affirming the judgment of the Tribunal. The judgment of the Tribunal suffered from basic errors which go to the root of the matter and which have been ignored both by the Tribunal as well as by the High Court.
### Response:
1
### Explanation:
15. On the basis of the above material which has been placed on the record, it was impossible to come to the conclusion that the charge against the first respondent is vague or ambiguous. The charge-sheet, together with the statement of imputations, contains a detailed elaboration of the allegations against the first respondent and does not leave the recipient in a measure of doubt or ambiguity over the nature of the case he is required to answer in the disciplinary enquiry. The finding that the charge is vague is palpably in error. The Tribunal declined to quash the charge-sheet by its initial order dated 28 July 2016. However, by a subsequent order dated 5 January 2018, it proceeded to do exactly what it had declined to do by its previous order. The Tribunal purportedly did so on the basis that prejudice had been caused to the first respondent by the denial of an opportunity for deputation or for promotion as a result of the pendency of the proceedings. The line of reasoning which weighed with the Tribunal is plainly erroneous. The Tribunal would have been justified in directing the expeditious conclusion of the enquiry, but instead, it proceeded to quash the enquiry in its entirety. This, in our view, was clearly impermissible. Every delay in conducting a disciplinary enquiry does not, ipso facto, lead to the enquiry being vitiated. Whether prejudice is caused to the officer who is being enquired into is a matter which has to be decided on the basis of the circumstances of each case. Prejudice must be demonstrated to have been caused and cannot be a matter of surmise. Apart from submitting that the first respondent was unable to proceed on deputation or to seek promotion, there is no basis on which it could be concluded that his right to defend himself stands prejudicially affected by a delay of two years in concluding the enquiry. The High Court, therefore, in our view, has clearly failed to properly exercise the jurisdiction vested in it by simply affirming the judgment of the Tribunal. The judgment of the Tribunal suffered from basic errors which go to the root of the matter and which have been ignored both by the Tribunal as well as by the High Court.
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M.P. Oil Extraction Vs. State Of M.P. | to the selected industries by assuring supply of sal seeds by the State Government. The case of M/s. Sal Udyog was also considered by such high-powered committee and the committee recommended in favour of M/s. Sal Udyog. Thereafter, the State Government renewed the agreement with the usual renewal clause. Such action of the State Government cannot be held to be illegal or arbitrary 44. The renewal clause in the impugned agreements executed in favour of the respondents does not also appear to be unjust or improper. Whether protection by way of supply of sal seeds under the terms of agreement requires to be continued for a further period, is a matter for decision by the State Government and unless such decision is patently arbitrary, interference by the Court is not called for. In the facts of the case, the decision of the State Government to extend the protection for further period cannot be held to be per se irrational, arbitrary or capricious warranting judicial review of such policy decision. Therefore, the High Court has rightly rejected the appellants contention about the invalidity of the renewal clause. The appellants failed in earlier attempts to challenge the validity of the agreement including the renewal clause. The subsequent challenge of the renewal clause, therefore, should not be entertained unless it can be clearly demonstrated that the fact situation has undergone such changes that the discretion in the matter of renewal of agreement should not be exercised by the State. It has been rightly contended by Dr. Singhvi that the respondents legitimately expect that the renewal clause should be given effect to in usual manner and according to past practice unless there is any special reason not to adhere to such practice. The doctrine of "legitimate expectation" has been judicially recognised by this Court in a number of decisions. The doctrine of "legitimate expectation" operates in the domain of public law and in an appropriate case, constitutes a substantive and enforceable right 45. Although to ensure fair play and transparency in State action, distribution of largesse by inviting open tenders or by public auction is desirable, it cannot be held that in no case distribution of such largesse by negotiation is permissible. In the instant case, as a policy decision protective measure by entering into agreements with selected industrial units for assured supply of sal seeds at concessional rate has been taken by the Government. The rate of royalty has also been fixed on some accepted principle of pricing formula as will be indicated hereafter. Hence, distribution or allotment of sal seeds at the determined royalty to the respondents and other units covered by the agreements cannot be assailed. It is to be appreciated that in this case, distribution by public auction or by open tender may not achieve the purpose of the policy of protective measure by way of supply of sal seeds at concessional rate of royalty to the industrial units covered by the agreements on being selected on valid and objective considerations 46. So far as the contention that royalty for the sal seed to be supplied to the respondents has been fixed unreasonably in order to ensure naked favouritism to the said respondents is concerned, the appellants have failed to demonstrate such naked favouritism. The fixation of rate of royalty on the basis of weighted average formula has a rational basis and is also a known method and modality for determining market price. It also appears to us that the price per MT of sal seeds has different components of which collection charges is the principal factor. It may also be noted here that the revisions of royalty by the State Government at Rs. 750, Rs. 1030 and Rs. 1030 per MT respectively for 1983-85, 1985-87 and 1987-89 blocks had been challenged and such revisions were struck down by the High Court of M.P. and the High Court directed redetermination of the rates of royalty as per the established weighted average formula. Arbitration was held for determining the appropriate royalty and the royalty thereafter was refixed at Rs. 300 per MT in place of Rs. 750, Rs. 300 per MT in place of Rs. 1030 and Rs. 294 per MT in place of Rs. 1030 for the said three blocks. In the aforesaid facts, it cannot be held that the fixation of royalty in the impugned agreements is without any basis and wholly arbitrary and designed only to ensure favouritism, as alleged. If there is an objective and rational foundation for the fixation of royalty, the Court will not interfere with the exercise of governmental decision by itself undertaking an exercise to find out as to whether better fixation was possible or not. It needs to be noted that in matters of economic rights and policy decision, the scope of judicial review is limited and circumscribed. It may also be indicated here that within the ambit of protective measure of assured supply of sal seeds, such supply at concessional price is also a relevant consideration. The State Government may not be dictated by the only consideration of more revenue 47. The anxiety of the appellants to also get allotments of reasonable quantity of sal seeds from the State Government can be appreciated but the policy decision of the State Government and consequential State action in entering into agreements with the respondents cannot be struck down on the vice of irrationality and arbitrariness. It has been submitted by the learned counsel for the State that the State Government is not oblivious to such need and also not averse to old industrial units which also use sal seeds for their plants. We reasonably expect that the Government will be alive to the need of sal seeds by the industrial units operating in the State of M.P. and in future when the policy will be reviewed by the State Government, it will take into consideration the felt need of proper distribution of sal seeds to different classes of industrial units with appropriate pragmatism | 0[ds]42. In the instant case, the State Government of M.P. framed Industrial Policy in 1979andthereafter revised the same from time to time according to the felt need. There is no material on record from which it can be reasonably found that the same was not informed by any reason whatsoever. That apart, such policy has been taken into consideration by the High Court of M.P.andalso by this Court in the earlier proceedingsandthe Industrial Policy has not been found to be arbitrary or capricious. On the contrary, the agreement made in favour of the appellants was struck down by the High Court by indicating that unlike other class of industrial units like the respondents Bastar Oil MillsandSal Udyog (Pvt.) Ltd. which were entitled to special treatment under the Industrial Policy, the appellants were not entitled to any special treatment which was not given to the other existing old industrial units in the State, similarly circumstanced43. It has been held by the High Court that the industrial units which were commissioned on the invitation of the State to undertake oil extraction operation on the assurance of supply of sal seeds by the State,d on a separatefooting. Such decision of the High Court though challenged before this Court, has not been upset. The distinctive features between the industrial units set up at the instance of the State Governmentandthe old existing units are based on an objective criteria. Therefore, the said two classes of industries are not similarly circumstanced. Article 14 prohibits discrimination amongst the equals but it should be appreciated that Article 14 has inbuilt flexibilityandit also permits different treatment to unequals. It may also be noted here that Bastar Oil Mills is situated at Jagdalpur which is admittedly a backwardandtribal area. The special treatment given to Bastar Oil Mills by assuring supply of 20, 000 MT of sal seeds under the impugned agreement cannot be held to be per se illegalandarbitrary. Classification on the basis of geographical situation has a rational basisandhas been recognised by this Court as indicated in the decisions referred to hereinbefore. It may also be noted that the agreement of M/s. Sal Udyog was terminated by the State Government for which reference to arbitration was made in terms of the agreement between the parties. Initially, the dispute was referred to the arbitration of a retired Judge of this Court but since the same could not be completed within the, the arbitration was later on referred to a District Judge. During the pendency of arbitration proceedings, the industrial policy of the State Government was reviewed by ad committee formed by the State Government. Such committee considered the question of continuance of protective measures to the selected industries by assuring supply of sal seeds by the State Government. The case of M/s. Sal Udyog was also considered by suchd committeeandthe committee recommended in favour of M/s. Sal Udyog. Thereafter, the State Government renewed the agreement with the usual renewal clause. Such action of the State Government cannot be held to be illegal or arbitrary44. The renewal clause in the impugned agreements executed in favour of the respondents does not also appear to be unjust or improper. Whether protection by way of supply of sal seeds under the terms of agreement requires to be continued for a further period, is a matter for decision by the State Governmentandunless such decision is patently arbitrary, interference by the Court is not called for. In the facts of the case, the decision of the State Government to extend the protection for further period cannot be held to be per se irrational, arbitrary or capricious warranting judicial review of such policy decision. Therefore, the High Court has rightly rejected the appellants contention about the invalidity of the renewal clause. The appellants failed in earlier attempts to challenge the validity of the agreement including the renewal clause. The subsequent challenge of the renewal clause, therefore, should not be entertained unless it can be clearly demonstrated that the fact situation has undergone such changes that the discretion in the matter of renewal of agreement should not be exercised by the State. It has been rightly contended by Dr. Singhvi that the respondents legitimately expect that the renewal clause should be given effect to in usual mannerandaccording to past practice unless there is any special reason not to adhere to such practice. The doctrine of "legitimate expectation" has been judicially recognised by this Court in a number of decisions. The doctrine of "legitimate expectation" operates in the domain of public lawandin an appropriate case, constitutes a substantiveandenforceable right45. Although to ensure fair playandtransparency in State action, distribution of largesse by inviting open tenders or by public auction is desirable, it cannot be held that in no case distribution of such largesse by negotiation is permissible. In the instant case, as a policy decision protective measure by entering into agreements with selected industrial units for assured supply of sal seeds at concessional rate has been taken by the Government. The rate of royalty has also been fixed on some accepted principle of pricing formula as will be indicated hereafter. Hence, distribution or allotment of sal seeds at the determined royalty to the respondentsandother units covered by the agreements cannot be assailed. It is to be appreciated that in this case, distribution by public auction or by open tender may not achieve the purpose of the policy of protective measure by way of supply of sal seeds at concessional rate of royalty to the industrial units covered by the agreements on being selected on validandobjective considerations46. So far as the contention that royalty for the sal seed to be supplied to the respondents has been fixed unreasonably in order to ensure naked favouritism to the said respondents is concerned, the appellants have failed to demonstrate such naked favouritism. The fixation of rate of royalty on the basis of weighted average formula has a rational basisandis also a known methodandmodality for determining market price. It also appears to us that the price per MT of sal seeds has different components of which collection charges is the principal factor. It may also be noted here that the revisions of royalty by the State Government at Rs. 750, Rs. 1030andRs. 1030 per MT respectively for9 blocks had been challengedandsuch revisions were struck down by the High Court of M.P.andthe High Court directed redetermination of the rates of royalty as per the established weighted average formula. Arbitration was held for determining the appropriate royaltyandthe royalty thereafter was refixed at Rs. 300 per MT in place of Rs. 750, Rs. 300 per MT in place of Rs. 1030andRs. 294 per MT in place of Rs. 1030 for the said three blocks. In the aforesaid facts, it cannot be held that the fixation of royalty in the impugned agreements is without any basisandwholly arbitraryanddesigned only to ensure favouritism, as alleged. If there is an objectiveandrational foundation for the fixation of royalty, the Court will not interfere with the exercise of governmental decision by itself undertaking an exercise to find out as to whether better fixation was possible or not. It needs to be noted that in matters of economic rightsandpolicy decision, the scope of judicial review is limitedandcircumscribed. It may also be indicated here that within the ambit of protective measure of assured supply of sal seeds, such supply at concessional price is also a relevant consideration. The State Government may not be dictated by the only consideration of more revenue47. The anxiety of the appellants to also get allotments of reasonable quantity of sal seeds from the State Government can be appreciated but the policy decision of the State Governmentandconsequential State action in entering into agreements with the respondents cannot be struck down on the vice of irrationalityandarbitrariness. It has been submitted by the learned counsel for the State that the State Government is not oblivious to such needandalso not averse to old industrial units which also use sal seeds for their plants. We reasonably expect that the Government will be alive to the need of sal seeds by the industrial units operating in the State of M.P.andin future when the policy will be reviewed by the State Government, it will take into consideration the felt need of proper distribution of sal seeds to different classes of industrial units with appropriate pragmatism | 0 | 10,257 | 1,500 | ### Instruction:
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to the selected industries by assuring supply of sal seeds by the State Government. The case of M/s. Sal Udyog was also considered by such high-powered committee and the committee recommended in favour of M/s. Sal Udyog. Thereafter, the State Government renewed the agreement with the usual renewal clause. Such action of the State Government cannot be held to be illegal or arbitrary 44. The renewal clause in the impugned agreements executed in favour of the respondents does not also appear to be unjust or improper. Whether protection by way of supply of sal seeds under the terms of agreement requires to be continued for a further period, is a matter for decision by the State Government and unless such decision is patently arbitrary, interference by the Court is not called for. In the facts of the case, the decision of the State Government to extend the protection for further period cannot be held to be per se irrational, arbitrary or capricious warranting judicial review of such policy decision. Therefore, the High Court has rightly rejected the appellants contention about the invalidity of the renewal clause. The appellants failed in earlier attempts to challenge the validity of the agreement including the renewal clause. The subsequent challenge of the renewal clause, therefore, should not be entertained unless it can be clearly demonstrated that the fact situation has undergone such changes that the discretion in the matter of renewal of agreement should not be exercised by the State. It has been rightly contended by Dr. Singhvi that the respondents legitimately expect that the renewal clause should be given effect to in usual manner and according to past practice unless there is any special reason not to adhere to such practice. The doctrine of "legitimate expectation" has been judicially recognised by this Court in a number of decisions. The doctrine of "legitimate expectation" operates in the domain of public law and in an appropriate case, constitutes a substantive and enforceable right 45. Although to ensure fair play and transparency in State action, distribution of largesse by inviting open tenders or by public auction is desirable, it cannot be held that in no case distribution of such largesse by negotiation is permissible. In the instant case, as a policy decision protective measure by entering into agreements with selected industrial units for assured supply of sal seeds at concessional rate has been taken by the Government. The rate of royalty has also been fixed on some accepted principle of pricing formula as will be indicated hereafter. Hence, distribution or allotment of sal seeds at the determined royalty to the respondents and other units covered by the agreements cannot be assailed. It is to be appreciated that in this case, distribution by public auction or by open tender may not achieve the purpose of the policy of protective measure by way of supply of sal seeds at concessional rate of royalty to the industrial units covered by the agreements on being selected on valid and objective considerations 46. So far as the contention that royalty for the sal seed to be supplied to the respondents has been fixed unreasonably in order to ensure naked favouritism to the said respondents is concerned, the appellants have failed to demonstrate such naked favouritism. The fixation of rate of royalty on the basis of weighted average formula has a rational basis and is also a known method and modality for determining market price. It also appears to us that the price per MT of sal seeds has different components of which collection charges is the principal factor. It may also be noted here that the revisions of royalty by the State Government at Rs. 750, Rs. 1030 and Rs. 1030 per MT respectively for 1983-85, 1985-87 and 1987-89 blocks had been challenged and such revisions were struck down by the High Court of M.P. and the High Court directed redetermination of the rates of royalty as per the established weighted average formula. Arbitration was held for determining the appropriate royalty and the royalty thereafter was refixed at Rs. 300 per MT in place of Rs. 750, Rs. 300 per MT in place of Rs. 1030 and Rs. 294 per MT in place of Rs. 1030 for the said three blocks. In the aforesaid facts, it cannot be held that the fixation of royalty in the impugned agreements is without any basis and wholly arbitrary and designed only to ensure favouritism, as alleged. If there is an objective and rational foundation for the fixation of royalty, the Court will not interfere with the exercise of governmental decision by itself undertaking an exercise to find out as to whether better fixation was possible or not. It needs to be noted that in matters of economic rights and policy decision, the scope of judicial review is limited and circumscribed. It may also be indicated here that within the ambit of protective measure of assured supply of sal seeds, such supply at concessional price is also a relevant consideration. The State Government may not be dictated by the only consideration of more revenue 47. The anxiety of the appellants to also get allotments of reasonable quantity of sal seeds from the State Government can be appreciated but the policy decision of the State Government and consequential State action in entering into agreements with the respondents cannot be struck down on the vice of irrationality and arbitrariness. It has been submitted by the learned counsel for the State that the State Government is not oblivious to such need and also not averse to old industrial units which also use sal seeds for their plants. We reasonably expect that the Government will be alive to the need of sal seeds by the industrial units operating in the State of M.P. and in future when the policy will be reviewed by the State Government, it will take into consideration the felt need of proper distribution of sal seeds to different classes of industrial units with appropriate pragmatism
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Judge of this Court but since the same could not be completed within the, the arbitration was later on referred to a District Judge. During the pendency of arbitration proceedings, the industrial policy of the State Government was reviewed by ad committee formed by the State Government. Such committee considered the question of continuance of protective measures to the selected industries by assuring supply of sal seeds by the State Government. The case of M/s. Sal Udyog was also considered by suchd committeeandthe committee recommended in favour of M/s. Sal Udyog. Thereafter, the State Government renewed the agreement with the usual renewal clause. Such action of the State Government cannot be held to be illegal or arbitrary44. The renewal clause in the impugned agreements executed in favour of the respondents does not also appear to be unjust or improper. Whether protection by way of supply of sal seeds under the terms of agreement requires to be continued for a further period, is a matter for decision by the State Governmentandunless such decision is patently arbitrary, interference by the Court is not called for. In the facts of the case, the decision of the State Government to extend the protection for further period cannot be held to be per se irrational, arbitrary or capricious warranting judicial review of such policy decision. Therefore, the High Court has rightly rejected the appellants contention about the invalidity of the renewal clause. The appellants failed in earlier attempts to challenge the validity of the agreement including the renewal clause. The subsequent challenge of the renewal clause, therefore, should not be entertained unless it can be clearly demonstrated that the fact situation has undergone such changes that the discretion in the matter of renewal of agreement should not be exercised by the State. It has been rightly contended by Dr. Singhvi that the respondents legitimately expect that the renewal clause should be given effect to in usual mannerandaccording to past practice unless there is any special reason not to adhere to such practice. The doctrine of "legitimate expectation" has been judicially recognised by this Court in a number of decisions. The doctrine of "legitimate expectation" operates in the domain of public lawandin an appropriate case, constitutes a substantiveandenforceable right45. Although to ensure fair playandtransparency in State action, distribution of largesse by inviting open tenders or by public auction is desirable, it cannot be held that in no case distribution of such largesse by negotiation is permissible. In the instant case, as a policy decision protective measure by entering into agreements with selected industrial units for assured supply of sal seeds at concessional rate has been taken by the Government. The rate of royalty has also been fixed on some accepted principle of pricing formula as will be indicated hereafter. Hence, distribution or allotment of sal seeds at the determined royalty to the respondentsandother units covered by the agreements cannot be assailed. It is to be appreciated that in this case, distribution by public auction or by open tender may not achieve the purpose of the policy of protective measure by way of supply of sal seeds at concessional rate of royalty to the industrial units covered by the agreements on being selected on validandobjective considerations46. So far as the contention that royalty for the sal seed to be supplied to the respondents has been fixed unreasonably in order to ensure naked favouritism to the said respondents is concerned, the appellants have failed to demonstrate such naked favouritism. The fixation of rate of royalty on the basis of weighted average formula has a rational basisandis also a known methodandmodality for determining market price. It also appears to us that the price per MT of sal seeds has different components of which collection charges is the principal factor. It may also be noted here that the revisions of royalty by the State Government at Rs. 750, Rs. 1030andRs. 1030 per MT respectively for9 blocks had been challengedandsuch revisions were struck down by the High Court of M.P.andthe High Court directed redetermination of the rates of royalty as per the established weighted average formula. Arbitration was held for determining the appropriate royaltyandthe royalty thereafter was refixed at Rs. 300 per MT in place of Rs. 750, Rs. 300 per MT in place of Rs. 1030andRs. 294 per MT in place of Rs. 1030 for the said three blocks. In the aforesaid facts, it cannot be held that the fixation of royalty in the impugned agreements is without any basisandwholly arbitraryanddesigned only to ensure favouritism, as alleged. If there is an objectiveandrational foundation for the fixation of royalty, the Court will not interfere with the exercise of governmental decision by itself undertaking an exercise to find out as to whether better fixation was possible or not. It needs to be noted that in matters of economic rightsandpolicy decision, the scope of judicial review is limitedandcircumscribed. It may also be indicated here that within the ambit of protective measure of assured supply of sal seeds, such supply at concessional price is also a relevant consideration. The State Government may not be dictated by the only consideration of more revenue47. The anxiety of the appellants to also get allotments of reasonable quantity of sal seeds from the State Government can be appreciated but the policy decision of the State Governmentandconsequential State action in entering into agreements with the respondents cannot be struck down on the vice of irrationalityandarbitrariness. It has been submitted by the learned counsel for the State that the State Government is not oblivious to such needandalso not averse to old industrial units which also use sal seeds for their plants. We reasonably expect that the Government will be alive to the need of sal seeds by the industrial units operating in the State of M.P.andin future when the policy will be reviewed by the State Government, it will take into consideration the felt need of proper distribution of sal seeds to different classes of industrial units with appropriate pragmatism
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K. SRINIVASAPPA & ORS Vs. M. MALLAMMA & ORS | entered into by plaintiff no. 1, on behalf of, and for the benefit of his two minor children, in order to protect their shares. The same was allowed by the Lok Adalat on recognising the terms of the compromise, would protect the interests plaintiff no. 1s minor children. There is no objection raised on behalf of plaintiff no. 1 in the instant case. (b) The Lok Adalat, in its order dated 27th April, 2013, rejected the allegations of fraud raised by plaintiff nos. 4-6, against the defendants and recorded that plaintiff nos. 4-6 had offered no explanation as to why no objection was raised by any of them on 07th July, 2012 before the Lok Adalat. It was further observed that plaintiff nos. 4-6, could not, after having accepted huge sums of money in terms of the compromise, rescind from the terms thereof. (c) It is not the case of plaintiff nos. 4-6 that they had not received an amount of Rs. 30,00,000/- (rupees thirty lakhs) each, in terms of the compromise. Further, it is not their case that such sum has been returned, in whole or in part, to the defendants. (d) That although plaintiff no. 4, stated that on learning that the proceedings conducted on 07th July, 2012 before the Lok Adalat were in relation to a compromise, she had not signed the order sheet, she failed to provide any explanation as to why she did not inform the Lok Adalat on the said date that her signature on the compromise petition was obtained by fraud. (e) That plaintiff nos. 4-6 had admitted before the Lok Adalat on 07th July, 2012 that the contents of the compromise petition were true and correct, when the same had been read over and explained to them in Kannada. (f) That plaintiff nos. 4-6 specifically admitted that they had received a sum of Rs. 30,00,000/- (rupees thirty lakhs) each, as mentioned in the compromise petition in lieu of relinquishing their rights, title and interest in the other suit schedule properties. (g) That if, in fact, the signatures of plaintiff nos. 4-6 had been obtained by fraud, they ought to have returned the amount of Rs. 30,00,000/- (rupees thirty lakhs) each, paid to them in accordance with the terms of the compromise. Having not done so, plaintiff nos. 4-6 had failed to establish that any fraud was practiced upon them, by the defendants, with a view to obtain their signatures on the compromise petition. (h) On a perusal of the plaint, it is noted that there were 13 items of the suit schedule property having different valuation and therefore, the plaintiffs would have had their respective shares in the suit schedule properties taken together. However, plaintiff nos.4-6 accepted a sum of Rs.30 lakhs each by relinquishing their right, title and interest in all the suit schedule properties. Having received a monetary share in respect of the suit items, the plaintiffs had decided to relinquish their right, title and interest in respect of all the suit items. The learned Single Judge of the High Court in the impugned judgment has not considered the aforesaid facts of the case in the context of setting aside the award of the Lok Adalat dated 07th July, 2012. Learned Single Judge has also not considered the reasoning given in the order dated 27th April, 2013 by which the objections raised by plaintiff nos.4-6 to the decree of the Lok Adalat had been rejected. 33. This Court in Ruby Sales and Services Pvt. Ltd. vs. State of Maharashtra- [(1994) 1 SCC 531] observed that a consent decree is a creature of an agreement and is liable to be set aside on any of the grounds which will invalidate an agreement. Therefore, it would follow that the level of circumspection, which a Court of law ought to exercise while setting aside a consent decree or a decree based on a memo of compromise, would be atleast of the same degree, which is to be observed while declaring an agreement as invalid. 34. In Pushpa Devi Bhagat (dead) through LR. Sadhna Rai vs. Rajinder Singh and Ors. – [(2006) 5 SCC 566] , this Court held that since no appeal would lie against a compromise decree, the only option available to a party seeking to avoid such a decree would be to challenge the consent decree before the Court that passed the same and to prove that the agreement forming the basis for the decree was invalid. It is therefore imperative that a party seeking to avoid the terms of a consent decree has to establish, before the Court that passed the same, that the agreement on which the consent decree is based, is invalid or illegal. 35. It is a settled position of law that where an allegation of fraud is made against a party to an agreement, the said allegation would have to be proved strictly, in order to avoid the agreement on the ground that fraud was practiced on a party in order to induce such party to enter into the agreement. Similarly, the terms of a compromise decree, cannot be avoided, unless the allegation of fraud has been proved. In the absence of any conclusive proof as to fraud on the part of the objectors, the High Court could not have set aside the compromise decree in the instant case. 36. Having considered the aforesaid facts of the present case, we are of the view that no ground was made out warranting the decision of the High Court to set aside the order of the Lok Adalat dated 07th July, 2012, wherein compromise was recorded between the parties. The High Courts decision to set aside the order of the Lok Adalat, without entering into a discussion as to the findings in such order, cannot be sustained. Such decision of the High Court runs contrary to established principles of law which seek to protect the sanctity and finality of orders based on a compromise or consent between parties. | 1[ds]27. At the outset, we observe that we do not find any reason forthcoming from the judgment of the High court while setting aside the order of the Lok Adalat dated 07th July, 2012 whereby the terms of the compromise were recorded. To recall a compromise that has been recorded would call for strong reasons. This is because a compromise would result ultimately into a decree of a Court which can be enforced just as a decree passed on an adjudication of a case. This is also true in the case of a compromise recorded before a Lok Adalat.31. On the aspect of the duty to accord reasons for a decision arrived at by a court, or for that matter, even a quasi-judicial authority, it would be useful to refer to a judgment of this Court in Kranti Associates Private Limited & Anr. Vs. Masood Ahmed Khan & Ors. – (2010) 9 SCC 496, wherein after referring to a number of judgments, this Court summarised at paragraph 47 of the judgment the law on the point. The relevant principles for the purpose of this case are extracted as under:(a) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.(b) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi- judicial or even administrative power.(c) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations.(d) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.(e) Reasons facilitate the process of judicial review by superior courts.(f) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice.(g) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants faith in the justice delivery system.(h) Insistence on reason is a requirement for both judicial accountability and transparency.(i) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.(j) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or rubber-stamp reasons is not to be equated with a valid decision- making process.(k) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor [(1987) 100 Harvard Law Review 731-37)(l) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of due process.(m) The requirement to record reasons emanates from the broad doctrine of fairness in decision-making i.e. adequate and intelligible reasons must be given for judicial decisions.Though the aforesaid judgment was rendered in the context of a dismissal of a revision petition by a cryptic order by the National Consumer Disputes Redressal Commission, reliance could be placed on the said judgment on the need to give reasons while deciding a matter particularly as it arises in the instant case.32. In view of the aforesaid discussion, we shall now consider the facts of the present case. The details as to the terms of the compromise as well as the contentions raised at the Bar have been narrated above. On a consideration of the same, the following aspects would emerge:(a) The Lok Adalat, in its award dated 07th July, 2012 recorded that the parties had admitted that the contents of the compromise petition were true and correct, after the terms thereof had been read over and explained to them in Kannada language. Further, it was also noted that the compromise was entered into by plaintiff no. 1, on behalf of, and for the benefit of his two minor children, in order to protect their shares. The same was allowed by the Lok Adalat on recognising the terms of the compromise, would protect the interests plaintiff no. 1s minor children. There is no objection raised on behalf of plaintiff no. 1 in the instant case.(b) The Lok Adalat, in its order dated 27th April, 2013, rejected the allegations of fraud raised by plaintiff nos. 4-6, against the defendants and recorded that plaintiff nos. 4-6 had offered no explanation as to why no objection was raised by any of them on 07th July, 2012 before the Lok Adalat. It was further observed that plaintiff nos. 4-6, could not, after having accepted huge sums of money in terms of the compromise, rescind from the terms thereof.(c) It is not the case of plaintiff nos. 4-6 that they had not received an amount of Rs. 30,00,000/- (rupees thirty lakhs) each, in terms of the compromise. Further, it is not their case that such sum has been returned, in whole or in part, to the defendants.(d) That although plaintiff no. 4, stated that on learning that the proceedings conducted on 07th July, 2012 before the Lok Adalat were in relation to a compromise, she had not signed the order sheet, she failed to provide any explanation as to why she did not inform the Lok Adalat on the said date that her signature on the compromise petition was obtained by fraud.(e) That plaintiff nos. 4-6 had admitted before the Lok Adalat on 07th July, 2012 that the contents of the compromise petition were true and correct, when the same had been read over and explained to them in Kannada.(f) That plaintiff nos. 4-6 specifically admitted that they had received a sum of Rs. 30,00,000/- (rupees thirty lakhs) each, as mentioned in the compromise petition in lieu of relinquishing their rights, title and interest in the other suit schedule properties.(g) That if, in fact, the signatures of plaintiff nos. 4-6 had been obtained by fraud, they ought to have returned the amount of Rs. 30,00,000/- (rupees thirty lakhs) each, paid to them in accordance with the terms of the compromise. Having not done so, plaintiff nos. 4-6 had failed to establish that any fraud was practiced upon them, by the defendants, with a view to obtain their signatures on the compromise petition.(h) On a perusal of the plaint, it is noted that there were 13 items of the suit schedule property having different valuation and therefore, the plaintiffs would have had their respective shares in the suit schedule properties taken together. However, plaintiff nos.4-6 accepted a sum of Rs.30 lakhs each by relinquishing their right, title and interest in all the suit schedule properties. Having received a monetary share in respect of the suit items, the plaintiffs had decided to relinquish their right, title and interest in respect of all the suit items.The learned Single Judge of the High Court in the impugned judgment has not considered the aforesaid facts of the case in the context of setting aside the award of the Lok Adalat dated 07th July, 2012. Learned Single Judge has also not considered the reasoning given in the order dated 27th April, 2013 by which the objections raised by plaintiff nos.4-6 to the decree of the Lok Adalat had been rejected.33. This Court in Ruby Sales and Services Pvt. Ltd. vs. State of Maharashtra- [(1994) 1 SCC 531] observed that a consent decree is a creature of an agreement and is liable to be set aside on any of the grounds which will invalidate an agreement. Therefore, it would follow that the level of circumspection, which a Court of law ought to exercise while setting aside a consent decree or a decree based on a memo of compromise, would be atleast of the same degree, which is to be observed while declaring an agreement as invalid.34. In Pushpa Devi Bhagat (dead) through LR. Sadhna Rai vs. Rajinder Singh and Ors. – [(2006) 5 SCC 566] , this Court held that since no appeal would lie against a compromise decree, the only option available to a party seeking to avoid such a decree would be to challenge the consent decree before the Court that passed the same and to prove that the agreement forming the basis for the decree was invalid. It is therefore imperative that a party seeking to avoid the terms of a consent decree has to establish, before the Court that passed the same, that the agreement on which the consent decree is based, is invalid or illegal.35. It is a settled position of law that where an allegation of fraud is made against a party to an agreement, the said allegation would have to be proved strictly, in order to avoid the agreement on the ground that fraud was practiced on a party in order to induce such party to enter into the agreement. Similarly, the terms of a compromise decree, cannot be avoided, unless the allegation of fraud has been proved. In the absence of any conclusive proof as to fraud on the part of the objectors, the High Court could not have set aside the compromise decree in the instant case.36. Having considered the aforesaid facts of the present case, we are of the view that no ground was made out warranting the decision of the High Court to set aside the order of the Lok Adalat dated 07th July, 2012, wherein compromise was recorded between the parties. The High Courts decision to set aside the order of the Lok Adalat, without entering into a discussion as to the findings in such order, cannot be sustained. Such decision of the High Court runs contrary to established principles of law which seek to protect the sanctity and finality of orders based on a compromise or consent between parties. | 1 | 6,259 | 1,976 | ### 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:
entered into by plaintiff no. 1, on behalf of, and for the benefit of his two minor children, in order to protect their shares. The same was allowed by the Lok Adalat on recognising the terms of the compromise, would protect the interests plaintiff no. 1s minor children. There is no objection raised on behalf of plaintiff no. 1 in the instant case. (b) The Lok Adalat, in its order dated 27th April, 2013, rejected the allegations of fraud raised by plaintiff nos. 4-6, against the defendants and recorded that plaintiff nos. 4-6 had offered no explanation as to why no objection was raised by any of them on 07th July, 2012 before the Lok Adalat. It was further observed that plaintiff nos. 4-6, could not, after having accepted huge sums of money in terms of the compromise, rescind from the terms thereof. (c) It is not the case of plaintiff nos. 4-6 that they had not received an amount of Rs. 30,00,000/- (rupees thirty lakhs) each, in terms of the compromise. Further, it is not their case that such sum has been returned, in whole or in part, to the defendants. (d) That although plaintiff no. 4, stated that on learning that the proceedings conducted on 07th July, 2012 before the Lok Adalat were in relation to a compromise, she had not signed the order sheet, she failed to provide any explanation as to why she did not inform the Lok Adalat on the said date that her signature on the compromise petition was obtained by fraud. (e) That plaintiff nos. 4-6 had admitted before the Lok Adalat on 07th July, 2012 that the contents of the compromise petition were true and correct, when the same had been read over and explained to them in Kannada. (f) That plaintiff nos. 4-6 specifically admitted that they had received a sum of Rs. 30,00,000/- (rupees thirty lakhs) each, as mentioned in the compromise petition in lieu of relinquishing their rights, title and interest in the other suit schedule properties. (g) That if, in fact, the signatures of plaintiff nos. 4-6 had been obtained by fraud, they ought to have returned the amount of Rs. 30,00,000/- (rupees thirty lakhs) each, paid to them in accordance with the terms of the compromise. Having not done so, plaintiff nos. 4-6 had failed to establish that any fraud was practiced upon them, by the defendants, with a view to obtain their signatures on the compromise petition. (h) On a perusal of the plaint, it is noted that there were 13 items of the suit schedule property having different valuation and therefore, the plaintiffs would have had their respective shares in the suit schedule properties taken together. However, plaintiff nos.4-6 accepted a sum of Rs.30 lakhs each by relinquishing their right, title and interest in all the suit schedule properties. Having received a monetary share in respect of the suit items, the plaintiffs had decided to relinquish their right, title and interest in respect of all the suit items. The learned Single Judge of the High Court in the impugned judgment has not considered the aforesaid facts of the case in the context of setting aside the award of the Lok Adalat dated 07th July, 2012. Learned Single Judge has also not considered the reasoning given in the order dated 27th April, 2013 by which the objections raised by plaintiff nos.4-6 to the decree of the Lok Adalat had been rejected. 33. This Court in Ruby Sales and Services Pvt. Ltd. vs. State of Maharashtra- [(1994) 1 SCC 531] observed that a consent decree is a creature of an agreement and is liable to be set aside on any of the grounds which will invalidate an agreement. Therefore, it would follow that the level of circumspection, which a Court of law ought to exercise while setting aside a consent decree or a decree based on a memo of compromise, would be atleast of the same degree, which is to be observed while declaring an agreement as invalid. 34. In Pushpa Devi Bhagat (dead) through LR. Sadhna Rai vs. Rajinder Singh and Ors. – [(2006) 5 SCC 566] , this Court held that since no appeal would lie against a compromise decree, the only option available to a party seeking to avoid such a decree would be to challenge the consent decree before the Court that passed the same and to prove that the agreement forming the basis for the decree was invalid. It is therefore imperative that a party seeking to avoid the terms of a consent decree has to establish, before the Court that passed the same, that the agreement on which the consent decree is based, is invalid or illegal. 35. It is a settled position of law that where an allegation of fraud is made against a party to an agreement, the said allegation would have to be proved strictly, in order to avoid the agreement on the ground that fraud was practiced on a party in order to induce such party to enter into the agreement. Similarly, the terms of a compromise decree, cannot be avoided, unless the allegation of fraud has been proved. In the absence of any conclusive proof as to fraud on the part of the objectors, the High Court could not have set aside the compromise decree in the instant case. 36. Having considered the aforesaid facts of the present case, we are of the view that no ground was made out warranting the decision of the High Court to set aside the order of the Lok Adalat dated 07th July, 2012, wherein compromise was recorded between the parties. The High Courts decision to set aside the order of the Lok Adalat, without entering into a discussion as to the findings in such order, cannot be sustained. Such decision of the High Court runs contrary to established principles of law which seek to protect the sanctity and finality of orders based on a compromise or consent between parties.
### Response:
1
### Explanation:
Kannada language. Further, it was also noted that the compromise was entered into by plaintiff no. 1, on behalf of, and for the benefit of his two minor children, in order to protect their shares. The same was allowed by the Lok Adalat on recognising the terms of the compromise, would protect the interests plaintiff no. 1s minor children. There is no objection raised on behalf of plaintiff no. 1 in the instant case.(b) The Lok Adalat, in its order dated 27th April, 2013, rejected the allegations of fraud raised by plaintiff nos. 4-6, against the defendants and recorded that plaintiff nos. 4-6 had offered no explanation as to why no objection was raised by any of them on 07th July, 2012 before the Lok Adalat. It was further observed that plaintiff nos. 4-6, could not, after having accepted huge sums of money in terms of the compromise, rescind from the terms thereof.(c) It is not the case of plaintiff nos. 4-6 that they had not received an amount of Rs. 30,00,000/- (rupees thirty lakhs) each, in terms of the compromise. Further, it is not their case that such sum has been returned, in whole or in part, to the defendants.(d) That although plaintiff no. 4, stated that on learning that the proceedings conducted on 07th July, 2012 before the Lok Adalat were in relation to a compromise, she had not signed the order sheet, she failed to provide any explanation as to why she did not inform the Lok Adalat on the said date that her signature on the compromise petition was obtained by fraud.(e) That plaintiff nos. 4-6 had admitted before the Lok Adalat on 07th July, 2012 that the contents of the compromise petition were true and correct, when the same had been read over and explained to them in Kannada.(f) That plaintiff nos. 4-6 specifically admitted that they had received a sum of Rs. 30,00,000/- (rupees thirty lakhs) each, as mentioned in the compromise petition in lieu of relinquishing their rights, title and interest in the other suit schedule properties.(g) That if, in fact, the signatures of plaintiff nos. 4-6 had been obtained by fraud, they ought to have returned the amount of Rs. 30,00,000/- (rupees thirty lakhs) each, paid to them in accordance with the terms of the compromise. Having not done so, plaintiff nos. 4-6 had failed to establish that any fraud was practiced upon them, by the defendants, with a view to obtain their signatures on the compromise petition.(h) On a perusal of the plaint, it is noted that there were 13 items of the suit schedule property having different valuation and therefore, the plaintiffs would have had their respective shares in the suit schedule properties taken together. However, plaintiff nos.4-6 accepted a sum of Rs.30 lakhs each by relinquishing their right, title and interest in all the suit schedule properties. Having received a monetary share in respect of the suit items, the plaintiffs had decided to relinquish their right, title and interest in respect of all the suit items.The learned Single Judge of the High Court in the impugned judgment has not considered the aforesaid facts of the case in the context of setting aside the award of the Lok Adalat dated 07th July, 2012. Learned Single Judge has also not considered the reasoning given in the order dated 27th April, 2013 by which the objections raised by plaintiff nos.4-6 to the decree of the Lok Adalat had been rejected.33. This Court in Ruby Sales and Services Pvt. Ltd. vs. State of Maharashtra- [(1994) 1 SCC 531] observed that a consent decree is a creature of an agreement and is liable to be set aside on any of the grounds which will invalidate an agreement. Therefore, it would follow that the level of circumspection, which a Court of law ought to exercise while setting aside a consent decree or a decree based on a memo of compromise, would be atleast of the same degree, which is to be observed while declaring an agreement as invalid.34. In Pushpa Devi Bhagat (dead) through LR. Sadhna Rai vs. Rajinder Singh and Ors. – [(2006) 5 SCC 566] , this Court held that since no appeal would lie against a compromise decree, the only option available to a party seeking to avoid such a decree would be to challenge the consent decree before the Court that passed the same and to prove that the agreement forming the basis for the decree was invalid. It is therefore imperative that a party seeking to avoid the terms of a consent decree has to establish, before the Court that passed the same, that the agreement on which the consent decree is based, is invalid or illegal.35. It is a settled position of law that where an allegation of fraud is made against a party to an agreement, the said allegation would have to be proved strictly, in order to avoid the agreement on the ground that fraud was practiced on a party in order to induce such party to enter into the agreement. Similarly, the terms of a compromise decree, cannot be avoided, unless the allegation of fraud has been proved. In the absence of any conclusive proof as to fraud on the part of the objectors, the High Court could not have set aside the compromise decree in the instant case.36. Having considered the aforesaid facts of the present case, we are of the view that no ground was made out warranting the decision of the High Court to set aside the order of the Lok Adalat dated 07th July, 2012, wherein compromise was recorded between the parties. The High Courts decision to set aside the order of the Lok Adalat, without entering into a discussion as to the findings in such order, cannot be sustained. Such decision of the High Court runs contrary to established principles of law which seek to protect the sanctity and finality of orders based on a compromise or consent between parties.
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Union of India and Others (And Others Petitions) Vs. R. S. Dhaba, Income Tax Officer, Hoshiarpur | Constitution were attracted. It was pointed out that in his demi-official letter dated February 6, 1964, Mr. M. Kasivisvanatha Pillai, the then Commissioner of Income-tax, said that the respondent should be reverted because of the large number of complaints which the department had received against the integrity of the respondent and the bad reports received by him from his superiors. It was said that the Commissioner was largely influenced by the complaints received against the respondent about his honesty while coming to the conclusion that he was not suitable for the post of Income-tax Officer. We are unable to accept the argument of Mr. Sen that the order of reversion is punitive in character and that the procedure of article 311(2) of the Constitution is applicable to this case. In the order of reversion, dated May 22, 1964, there is nothing to show that a stigma was attached to the respondent. No reference is made to the imputation on the integrity of the respondent and the only reason given is that the respondent was found unsuitable to hold the post of Income- tax Officer, class II. It is well established that a Government servant who is officiating in a post has no right to hold it for all time and the Government servant who is given an officiating post holds it on the implied term that he will have to be reverted if his work was found unsuitable. In a case of this description a reversion on the ground of unsuitability is an action in accordance with the terms on which the officiating post is held and not a reduction in rank by way of punishment to which article 311 of the Constitution could be attracted. It is, of course, well-settled that temporary Government servants are also entitled to the protection of article 311(2) of the Constitution in the same manner as permanent Government servants if the Government takes action against them meting out one of the three punishments, namely, dismissal, removal or reduction in rank (see Purshotam Lal Dhingra v. Union of India). But this protection is only available where the dismissal, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise. As pointed out in Purshotam Lal Dhingras case, the two tests applicable in a matter of this description are : (1) whether the Government servant has a right to the post or the rank, or (2) whether he has been visited with evil consequences; and if either of the tests is satisfied, it must be held that the Government servant had been punished. Further, even though misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the express or implied terms of the contract of employment or under the statutory rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is wholly irrelevant. The test for attracting article 311(2) of the Constitution in such a case is whether the misconduct or negligence is a mere motive for the order of reversion or termination of service or whether it is the very foundation of the order of termination of service of the temporary employee (See the decision of this court in Champaklal Chimanlal Shah v. Union of India). In time present case, however, the order of reversion does not contain any express words of stigma attributed to the conduct of the respondent and, therefore, it cannot be held that the order of reversion was made by way of punishment and the provisions of article 311 of the Constitution are consequently attracted. This view is supported by the decision of this court in State of Bombay v. F. A. Abraham , in which the respondent who held the substantive post of Inspector of Police and had been officiating as the Deputy Superintendent of Police was reverted to his original rank of Inspector without being given any opportunity of being heard in respect of the reversion. His request to furnish him with reasons of his reversion was refused. Later, a departmental enquiry was held behind his back in respect of certain allegations of misconduct made against him in a confidential communication from the District Superintendent of Police to the Deputy Inspector-General of Police but these allegations were not proved at the enquiry. The Inspector-General of Police thereafter wrote to the Government that the respondents previous record was not satisfactory and that lie had been promoted to officiate as Deputy Superintendent of Police in the expectation that he would turn a new leaf but the complaint made in the confidential memorandum was a clear proof that the respondent was habitually dishonest and did not deserve promotion. As the order of reversion was maintained by the Government, the respondent filed a suit challenging the order. The suit was decreed by the court of first instance and the decree was affirmed by the High Court on appeal. On further appeal to this court it was held that the reversion of the respondent on the ground of unsuitablility was an action in accordance with the terms of which the officiating post was being held and was not a reduction in rank by way of punishment to which section 240 of the Government of India Act, 1935, would be attracted. The appeal of the Government was allowed and the suit of the respondent dismissed. A similar view was expressed by this court in I. N. Saksena v. State of Madhya Pradesh and Jasbir Singh v. Union of IndiaWe are accordingly of opinion that in the present case the High Court was in error in holding that the reversion of the respondent from the position of officiating Income-tax Officer, class II, to a lower position as inspector of income-tax was tantamount to a reduction in rank and that the respondent was entitled to the safeguards provided in article 311 of the Constitution4. | 0[ds]We are unable to accept the argument of Mr. Sen that the order of reversion is punitive in character and that the procedure of article 311(2) of the Constitution is applicable to this case. In the order of reversion, dated May 22, 1964, there is nothing to show that a stigma was attached to the respondent. No reference is made to the imputation on the integrity of the respondent and the only reason given is that the respondent was found unsuitable to hold the post of Income- tax Officer, class II. It is well established that a Government servant who is officiating in a post has no right to hold it for all time and the Government servant who is given an officiating post holds it on the implied term that he will have to be reverted if his work was found unsuitable. In a case of this description a reversion on the ground of unsuitability is an action in accordance with the terms on which the officiating post is held and not a reduction in rank by way of punishment to which article 311 of the Constitution could be attracted. It is, of course, well-settled that temporary Government servants are also entitled to the protection of article 311(2) of the Constitution in the same manner as permanent Government servants if the Government takes action against them meting out one of the three punishments, namely, dismissal, removal or reduction in rank (see Purshotam Lal Dhingra v. Union of India). But this protection is only available where the dismissal, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise. As pointed out in Purshotam Lal Dhingras case, the two tests applicable in a matter of this description are : (1) whether the Government servant has a right to the post or the rank, or (2) whether he has been visited with evil consequences; and if either of the tests is satisfied, it must be held that the Government servant had been punished. Further, even though misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the express or implied terms of the contract of employment or under the statutory rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is wholly irrelevant. The test for attracting article 311(2) of the Constitution in such a case is whether the misconduct or negligence is a mere motive for the order of reversion or termination of service or whether it is the very foundation of the order of termination of service of the temporary employee (See the decision of this court in Champaklal Chimanlal Shah v. Union of India). In time present case, however, the order of reversion does not contain any express words of stigma attributed to the conduct of the respondent and, therefore, it cannot be held that the order of reversion was made by way of punishment and the provisions of article 311 of the Constitution are consequently attracted. This view is supported by the decision of this court in State of Bombay v. F. A.similar view was expressed by this court in I. N. Saksena v. State of Madhya Pradesh and Jasbir Singh v. Union of IndiaWe are accordingly of opinion that in the present case the High Court was in error in holding that the reversion of the respondent from the position of officiating Income-tax Officer, class II, to a lower position as inspector of income-tax was tantamount to a reduction in rank and that the respondent was entitled to the safeguards provided in article 311 of the Constitution | 0 | 1,631 | 684 | ### 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:
Constitution were attracted. It was pointed out that in his demi-official letter dated February 6, 1964, Mr. M. Kasivisvanatha Pillai, the then Commissioner of Income-tax, said that the respondent should be reverted because of the large number of complaints which the department had received against the integrity of the respondent and the bad reports received by him from his superiors. It was said that the Commissioner was largely influenced by the complaints received against the respondent about his honesty while coming to the conclusion that he was not suitable for the post of Income-tax Officer. We are unable to accept the argument of Mr. Sen that the order of reversion is punitive in character and that the procedure of article 311(2) of the Constitution is applicable to this case. In the order of reversion, dated May 22, 1964, there is nothing to show that a stigma was attached to the respondent. No reference is made to the imputation on the integrity of the respondent and the only reason given is that the respondent was found unsuitable to hold the post of Income- tax Officer, class II. It is well established that a Government servant who is officiating in a post has no right to hold it for all time and the Government servant who is given an officiating post holds it on the implied term that he will have to be reverted if his work was found unsuitable. In a case of this description a reversion on the ground of unsuitability is an action in accordance with the terms on which the officiating post is held and not a reduction in rank by way of punishment to which article 311 of the Constitution could be attracted. It is, of course, well-settled that temporary Government servants are also entitled to the protection of article 311(2) of the Constitution in the same manner as permanent Government servants if the Government takes action against them meting out one of the three punishments, namely, dismissal, removal or reduction in rank (see Purshotam Lal Dhingra v. Union of India). But this protection is only available where the dismissal, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise. As pointed out in Purshotam Lal Dhingras case, the two tests applicable in a matter of this description are : (1) whether the Government servant has a right to the post or the rank, or (2) whether he has been visited with evil consequences; and if either of the tests is satisfied, it must be held that the Government servant had been punished. Further, even though misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the express or implied terms of the contract of employment or under the statutory rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is wholly irrelevant. The test for attracting article 311(2) of the Constitution in such a case is whether the misconduct or negligence is a mere motive for the order of reversion or termination of service or whether it is the very foundation of the order of termination of service of the temporary employee (See the decision of this court in Champaklal Chimanlal Shah v. Union of India). In time present case, however, the order of reversion does not contain any express words of stigma attributed to the conduct of the respondent and, therefore, it cannot be held that the order of reversion was made by way of punishment and the provisions of article 311 of the Constitution are consequently attracted. This view is supported by the decision of this court in State of Bombay v. F. A. Abraham , in which the respondent who held the substantive post of Inspector of Police and had been officiating as the Deputy Superintendent of Police was reverted to his original rank of Inspector without being given any opportunity of being heard in respect of the reversion. His request to furnish him with reasons of his reversion was refused. Later, a departmental enquiry was held behind his back in respect of certain allegations of misconduct made against him in a confidential communication from the District Superintendent of Police to the Deputy Inspector-General of Police but these allegations were not proved at the enquiry. The Inspector-General of Police thereafter wrote to the Government that the respondents previous record was not satisfactory and that lie had been promoted to officiate as Deputy Superintendent of Police in the expectation that he would turn a new leaf but the complaint made in the confidential memorandum was a clear proof that the respondent was habitually dishonest and did not deserve promotion. As the order of reversion was maintained by the Government, the respondent filed a suit challenging the order. The suit was decreed by the court of first instance and the decree was affirmed by the High Court on appeal. On further appeal to this court it was held that the reversion of the respondent on the ground of unsuitablility was an action in accordance with the terms of which the officiating post was being held and was not a reduction in rank by way of punishment to which section 240 of the Government of India Act, 1935, would be attracted. The appeal of the Government was allowed and the suit of the respondent dismissed. A similar view was expressed by this court in I. N. Saksena v. State of Madhya Pradesh and Jasbir Singh v. Union of IndiaWe are accordingly of opinion that in the present case the High Court was in error in holding that the reversion of the respondent from the position of officiating Income-tax Officer, class II, to a lower position as inspector of income-tax was tantamount to a reduction in rank and that the respondent was entitled to the safeguards provided in article 311 of the Constitution4.
### Response:
0
### Explanation:
We are unable to accept the argument of Mr. Sen that the order of reversion is punitive in character and that the procedure of article 311(2) of the Constitution is applicable to this case. In the order of reversion, dated May 22, 1964, there is nothing to show that a stigma was attached to the respondent. No reference is made to the imputation on the integrity of the respondent and the only reason given is that the respondent was found unsuitable to hold the post of Income- tax Officer, class II. It is well established that a Government servant who is officiating in a post has no right to hold it for all time and the Government servant who is given an officiating post holds it on the implied term that he will have to be reverted if his work was found unsuitable. In a case of this description a reversion on the ground of unsuitability is an action in accordance with the terms on which the officiating post is held and not a reduction in rank by way of punishment to which article 311 of the Constitution could be attracted. It is, of course, well-settled that temporary Government servants are also entitled to the protection of article 311(2) of the Constitution in the same manner as permanent Government servants if the Government takes action against them meting out one of the three punishments, namely, dismissal, removal or reduction in rank (see Purshotam Lal Dhingra v. Union of India). But this protection is only available where the dismissal, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise. As pointed out in Purshotam Lal Dhingras case, the two tests applicable in a matter of this description are : (1) whether the Government servant has a right to the post or the rank, or (2) whether he has been visited with evil consequences; and if either of the tests is satisfied, it must be held that the Government servant had been punished. Further, even though misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the express or implied terms of the contract of employment or under the statutory rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is wholly irrelevant. The test for attracting article 311(2) of the Constitution in such a case is whether the misconduct or negligence is a mere motive for the order of reversion or termination of service or whether it is the very foundation of the order of termination of service of the temporary employee (See the decision of this court in Champaklal Chimanlal Shah v. Union of India). In time present case, however, the order of reversion does not contain any express words of stigma attributed to the conduct of the respondent and, therefore, it cannot be held that the order of reversion was made by way of punishment and the provisions of article 311 of the Constitution are consequently attracted. This view is supported by the decision of this court in State of Bombay v. F. A.similar view was expressed by this court in I. N. Saksena v. State of Madhya Pradesh and Jasbir Singh v. Union of IndiaWe are accordingly of opinion that in the present case the High Court was in error in holding that the reversion of the respondent from the position of officiating Income-tax Officer, class II, to a lower position as inspector of income-tax was tantamount to a reduction in rank and that the respondent was entitled to the safeguards provided in article 311 of the Constitution
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Munusamy & Others Vs. The Managing Director, Tamil Nadu State Transport Corporation (Villupuram) Ltd | the compensation amount under the head ‘loss of dependency’. The necessity to provide future prospects has been expounded by the Constitution Bench of this Court in National Insurance Company Ltd. (supra). It will be useful to reproduce paragraph No.59 of the said judgment, which reads thus:“59. Having bestowed our anxious consideration, we are disposed to think when we accept the principle of standardization, there is really no rationale not to apply the said principle to the self-employed or a person who is on a fixed 44 salary. To follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. In case of a deceased who had held a permanent job with inbuilt grant of annual increment, there is an acceptable certainty. But to state that the legal representatives of a deceased who was on a fixed salary would not be entitled to the benefit of future prospects for the purpose of computation of compensation would be inapposite. It is because the criterion of distinction between the two in that event would be certainty on the one hand and staticness on the other. One may perceive that the comparative measure is certainty on the one hand and uncertainty on the other but such a perception is fallacious. It is because the price rise does affect a self-employed person; and that apart there is always an incessant effort to enhance one’s income for sustenance. The purchasing capacity of a salaried person on permanent job when increases because of grant of increments and pay revision or for some other change in service conditions, there is always a 45 competing attitude in the private sector to enhance the salary to get better efficiency from the employees. Similarly, a person who is self-employed is bound to garner his resources and raise his charges/fees so that he can live with same facilities. To have the perception that he is likely to remain static and his income to remain stagnant is contrary to the fundamental concept of human attitude which always intends to live with dynamism and move and change with the time. Though it may seem appropriate that there cannot be certainty in addition of future prospects to the existing income unlike in the case of a person having a permanent job, yet the said perception does not really deserve acceptance. We are inclined to think that there can be some degree of difference as regards the percentage that is meant for or applied to in respect of the legal representatives who claim on behalf of the deceased who had a permanent job than a person who is self-employed or on a fixed salary. But not to apply the principle of standardization on the foundation of perceived lack of certainty would tantamount to remaining oblivious to the marrows of ground reality. And, therefore, degreetest is imperative. Unless the degreetest is applied and left to the parties to adduce evidence to establish, it would be unfair and inequitable. The degreetest has to have the inbuilt concept of 46 percentage. Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life, etc., an addition of 40% of the established income of the deceased towards future prospects and where the deceased was below 40 years an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable.”Again, in the concluding paragraph No.61 the Court observed thus:“61. In view of the aforesaid analysis, we proceed to record our conclusions:* * *(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was 48 between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.(iv) In case the deceased was selfemployed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.”4. On 03.03.2007, the deceased (Palani), who was only around 21 years of age at the time, was riding a motorcycle bearing Registration No. TN22 AP 5092 along with his friend, one Haridass as a pillion rider, from Tambaram to Chengalpattu on GST Road, Maraimalai Nagar, opposite Vikram Hotel, when they collided with a bus bearing Registration No. TN21 N 0943 belonging to the respondent Transport Corporation, which was driven in a rash and negligent manner. The deceased was unmarried and working as a contract worker in Hyundai Car Company, Sriperumbudur. Applying the dictum of the Constitution Bench referred to above, the appellants are justified in insisting for grant of future prospects at the rate of 40% of the established income. The High Court has held that the earning of the deceased at the relevant time can be taken as Rs.4,000/per month. The High Court did not provide 40% towards future prospects on the established income of the deceased. Thus, the monthly loss of dependency, in the facts of the present case would be Rs.4,000 + 1,600 = Rs.5,600/. | 1[ds]3. On perusal of the judgment under appeal, it is evident that the High Court has not provided for future prospects while computing the compensation amount under the head ‘loss ofThe necessity to provide future prospects has been expounded by the Constitution Bench of this Court in National Insurance Company Ltd.the dictum of the Constitution Bench referred to above, the appellants are justified in insisting for grant of future prospects at the rate of 40% of the established income. The High Court has held that the earning of the deceased at the relevant time can be taken as Rs.4,000/per month. The High Court did not provide 40% towards future prospects on the established income of the deceased. Thus, the monthly loss of dependency, in the facts of the present case would be Rs.4,000 + 1,600 = Rs.5,600/. | 1 | 1,440 | 153 | ### Instruction:
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the compensation amount under the head ‘loss of dependency’. The necessity to provide future prospects has been expounded by the Constitution Bench of this Court in National Insurance Company Ltd. (supra). It will be useful to reproduce paragraph No.59 of the said judgment, which reads thus:“59. Having bestowed our anxious consideration, we are disposed to think when we accept the principle of standardization, there is really no rationale not to apply the said principle to the self-employed or a person who is on a fixed 44 salary. To follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. In case of a deceased who had held a permanent job with inbuilt grant of annual increment, there is an acceptable certainty. But to state that the legal representatives of a deceased who was on a fixed salary would not be entitled to the benefit of future prospects for the purpose of computation of compensation would be inapposite. It is because the criterion of distinction between the two in that event would be certainty on the one hand and staticness on the other. One may perceive that the comparative measure is certainty on the one hand and uncertainty on the other but such a perception is fallacious. It is because the price rise does affect a self-employed person; and that apart there is always an incessant effort to enhance one’s income for sustenance. The purchasing capacity of a salaried person on permanent job when increases because of grant of increments and pay revision or for some other change in service conditions, there is always a 45 competing attitude in the private sector to enhance the salary to get better efficiency from the employees. Similarly, a person who is self-employed is bound to garner his resources and raise his charges/fees so that he can live with same facilities. To have the perception that he is likely to remain static and his income to remain stagnant is contrary to the fundamental concept of human attitude which always intends to live with dynamism and move and change with the time. Though it may seem appropriate that there cannot be certainty in addition of future prospects to the existing income unlike in the case of a person having a permanent job, yet the said perception does not really deserve acceptance. We are inclined to think that there can be some degree of difference as regards the percentage that is meant for or applied to in respect of the legal representatives who claim on behalf of the deceased who had a permanent job than a person who is self-employed or on a fixed salary. But not to apply the principle of standardization on the foundation of perceived lack of certainty would tantamount to remaining oblivious to the marrows of ground reality. And, therefore, degreetest is imperative. Unless the degreetest is applied and left to the parties to adduce evidence to establish, it would be unfair and inequitable. The degreetest has to have the inbuilt concept of 46 percentage. Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life, etc., an addition of 40% of the established income of the deceased towards future prospects and where the deceased was below 40 years an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable.”Again, in the concluding paragraph No.61 the Court observed thus:“61. In view of the aforesaid analysis, we proceed to record our conclusions:* * *(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was 48 between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.(iv) In case the deceased was selfemployed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.”4. On 03.03.2007, the deceased (Palani), who was only around 21 years of age at the time, was riding a motorcycle bearing Registration No. TN22 AP 5092 along with his friend, one Haridass as a pillion rider, from Tambaram to Chengalpattu on GST Road, Maraimalai Nagar, opposite Vikram Hotel, when they collided with a bus bearing Registration No. TN21 N 0943 belonging to the respondent Transport Corporation, which was driven in a rash and negligent manner. The deceased was unmarried and working as a contract worker in Hyundai Car Company, Sriperumbudur. Applying the dictum of the Constitution Bench referred to above, the appellants are justified in insisting for grant of future prospects at the rate of 40% of the established income. The High Court has held that the earning of the deceased at the relevant time can be taken as Rs.4,000/per month. The High Court did not provide 40% towards future prospects on the established income of the deceased. Thus, the monthly loss of dependency, in the facts of the present case would be Rs.4,000 + 1,600 = Rs.5,600/.
### Response:
1
### Explanation:
3. On perusal of the judgment under appeal, it is evident that the High Court has not provided for future prospects while computing the compensation amount under the head ‘loss ofThe necessity to provide future prospects has been expounded by the Constitution Bench of this Court in National Insurance Company Ltd.the dictum of the Constitution Bench referred to above, the appellants are justified in insisting for grant of future prospects at the rate of 40% of the established income. The High Court has held that the earning of the deceased at the relevant time can be taken as Rs.4,000/per month. The High Court did not provide 40% towards future prospects on the established income of the deceased. Thus, the monthly loss of dependency, in the facts of the present case would be Rs.4,000 + 1,600 = Rs.5,600/.
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Bija Vs. State Of Haryana | was put near the dead body of deceased Santro to give an impression to police that death was caused due to electrocution. It was because of the investigating officer’s efforts that the falsehood had come to light and it was established that there was no electric connection and death was not due to electrocution but due to asphyxia by smothering. Regarding evidence of Shero-sister of deceased, it was submitted that though she was sister of deceased Santro, she was married to real brother of Raghbir Singh and Jagdish and son of Bija and Sona Devi. Shero was staying with her husband. Obviously, in the circumstances, she was expected to support the defence. Her evidence was, hence, rightly discarded by both the Courts. Since all the appellants had common intention to kill deceased Santro, the Courts below were right in ordering conviction of all of them under Section 302 read with Section 34, IPC and no interference is called for. The appeal, therefore, deserves to be dismissed. 13. Having heard learned counsel for the parties, in our opinion, the appeal deserves to be partly allowed. From the evidence of prosecution witnesses and the findings recorded by both the Courts in the light of evidence of PW9-Dr. Kakkar, it was proved beyond reasonable doubt that the cause of death of Santro was asphyxia due to smothering. An impression was sought to be created by the accused that cause of death was electrocution but from the evidence of PW10-Inspector Gulzar Singh, the possibility was ruled out. It was also established from medical evidence that the death was not due to ailment of Epilepsy. Both the Courts, in our opinion, therefore, were right in coming to the conclusion that death of Santro was homicidal in nature and the cause of death was Asphyxia due to smothering. 14. The Courts below were right in not relying upon the deposition of DW1-Shero and in observing that she was under pressure as she was staying at matrimonial home and with a view to protect her, she deposed in favour of her in-laws as she wanted to save them. In our opinion, it could not be said that by drawing such inference, the trial Court or the High Court had committed any error. This is coupled with the fact that a show was made by the accused persons to mislead the police and investigating agency by placing electric wire near the dead body of deceased Santro and also putting forward a ground of death as ailment of Epilepsy, ruled out by medical evidence. 15. There was motive on the part of the accused in doing away with Santro. Though both the Courts had not believed the case of demand of dowry and cruelty towards deceased Santro for non-payment of sufficient dowry by the parents of deceased Santro in view of the circumstance that another sister Shero married to one of the brothers of Raghbir Singh had not stated anything as to demand of dowry by the accused persons and she was living at the matrimonial home peacefully, it has come on record that Santro was not good-looking lady. Moreover, though her marriage was performed with Raghbir Singh in 1988 along with Shero, for about 10 years i.e. upto 1997, she could not conceive and could not bear a child. Raghbir Singh was totally indifferent and abandoned her. So much so that complaints were made by PW2-Lakhmi Chand (father of deceased Santro) to Panchayat and Panchayat had to intervene. In 1997, finally, the Panchayat practically forced the family members of the accused to accept Santro and keep her in their family and it was because of the compulsion and pressure of Panchayat that accused had to agree to marriage between Jagdish and Santro. Thus, there was every reason for the accused to be unhappy with deceased Santro. This is further clear from the fact that on the intervening night of 1st and 2nd May, 1998, she was alone in her room on the ground floor and the dead body of deceased Santro was found in the morning of May 2, 1998 from the house of the accused. 16. But, there is no evidence that parents of the accused No.3-Jagdish i.e. accused Nos. 1 & 4 and former husband of the deceased-accused No.2-Raghbir Singh had common intention to kill deceased Santro and they were parties in killing the deceased. It is no doubt true that Jagdish, who was the present husband, had grievance against Santro. He had to marry Santro who was neither beautiful nor able to bear child. The marriage was subsisting. After Santro married to Jagdish in 1997, he was unhappy as she could not conceive. Presumably because of that, he was also indifferent towards her and in the intervening night of May 1 & 2, 1998, he was not along with her in the company of his wife in the room where she was sleeping but was on the roof along with other family members. But, in view of the fact that accused Nos. 1, 2 & 4 could not be said to be directly connected with the death of Santro, in absence of clear evidence to that effect, the Courts below could not have convicted them by invoking Section 34, IPC. So-called extra judicial confession by Smt. Sona Devi, accused No.4 before Gaje Singh and Amar Singh has not been proved. Direct, immediate and proximate grievance at the relevant time was for accused Jagdish. Hence, his conviction for an offence punishable under Section 302, IPC recorded by the trial Court and confirmed by the High Court cannot be said to be contrary to law or otherwise unlawful. But there was no sufficient evidence as to common intention on the part of the other accused in absence of requisite material on record. In our considered opinion, therefore, Section 34, IPC could not have been invoked by the Courts below. To that extent, therefore, both the judgments deserve to be set aside. 17. For the foregoing reasons, the | 1[ds]In our opinion,the appeal deserves to be partly allowed. From the evidence of prosecution witnesses and the findings recorded by both the Courts in the light of evidence of PW9-Dr. Kakkar, it was proved beyond reasonable doubt that the cause of death of Santro was asphyxia due to smothering. An impression was sought to be created by the accused that cause of death was electrocution but from the evidence of PW10-Inspector Gulzar Singh, the possibility was ruled out. It was also established from medical evidence that the death was not due to ailment of Epilepsy. Both the Courts, in our opinion, therefore, were right in coming to the conclusion that death of Santro was homicidal in nature and the cause of death was Asphyxia due toCourts below were right in not relying upon the deposition of DW1-Shero and in observing that she was under pressure as she was staying at matrimonial home and with a view to protect her, she deposed in favour of her in-laws as she wanted to save them.In our opinion,it could not be said that by drawing such inference, the trial Court or the High Court had committed any error. This is coupled with the fact that a show was made by the accused persons to mislead the police and investigating agency by placing electric wire near the dead body of deceased Santro and also putting forward a ground of death as ailment of Epilepsy, ruled out by medicalwas motive on the part of the accused in doing away with Santro. Though both the Courts had not believed the case of demand of dowry and cruelty towards deceased Santro for non-payment of sufficient dowry by the parents of deceased Santro in view of the circumstance that another sister Shero married to one of the brothers of Raghbir Singh had not stated anything as to demand of dowry by the accused persons and she was living at the matrimonial home peacefully, it has come on record that Santro was not good-looking lady. Moreover, though her marriage was performed with Raghbir Singh in 1988 along with Shero, for about 10 years i.e. upto 1997, she could not conceive and could not bear a child. Raghbir Singh was totally indifferent and abandoned her. So much so that complaints were made by PW2-Lakhmi Chand (father of deceased Santro) to Panchayat and Panchayat had to intervene. In 1997, finally, the Panchayat practically forced the family members of the accused to accept Santro and keep her in their family and it was because of the compulsion and pressure of Panchayat that accused had to agree to marriage between Jagdish and Santro. Thus, there was every reason for the accused to be unhappy with deceased Santro. This is further clear from the fact that on the intervening night of 1st and 2nd May, 1998, she was alone in her room on the ground floor and the dead body of deceased Santro was found in the morning of May 2, 1998 from the house of thethere is no evidence that parents of the accused No.3-Jagdish i.e. accused Nos. 1 & 4 and former husband of the deceased-accused No.2-Raghbir Singh had common intention to kill deceased Santro and they were parties in killing the deceased. It is no doubt true that Jagdish, who was the present husband, had grievance against Santro. He had to marry Santro who was neither beautiful nor able to bear child. The marriage was subsisting. After Santro married to Jagdish in 1997, he was unhappy as she could not conceive. Presumably because of that, he was also indifferent towards her and in the intervening night of May 1 & 2, 1998, he was not along with her in the company of his wife in the room where she was sleeping but was on the roof along with other family members. But, in view of the fact that accused Nos. 1, 2 & 4 could not be said to be directly connected with the death of Santro, in absence of clear evidence to that effect, the Courts below could not have convicted them by invoking Section 34, IPC. So-called extra judicial confession by Smt. Sona Devi, accused No.4 before Gaje Singh and Amar Singh has not been proved. Direct, immediate and proximate grievance at the relevant time was for accused Jagdish. Hence, his conviction for an offence punishable under Section 302, IPC recorded by the trial Court and confirmed by the High Court cannot be said to be contrary to law or otherwise unlawful. But there was no sufficient evidence as to common intention on the part of the other accused in absence of requisite material on record. In our considered opinion, therefore, Section 34, IPC could not have been invoked by the Courts below. To that extent, therefore, both the judgments deserve to be set aside. | 1 | 3,420 | 884 | ### 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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was put near the dead body of deceased Santro to give an impression to police that death was caused due to electrocution. It was because of the investigating officer’s efforts that the falsehood had come to light and it was established that there was no electric connection and death was not due to electrocution but due to asphyxia by smothering. Regarding evidence of Shero-sister of deceased, it was submitted that though she was sister of deceased Santro, she was married to real brother of Raghbir Singh and Jagdish and son of Bija and Sona Devi. Shero was staying with her husband. Obviously, in the circumstances, she was expected to support the defence. Her evidence was, hence, rightly discarded by both the Courts. Since all the appellants had common intention to kill deceased Santro, the Courts below were right in ordering conviction of all of them under Section 302 read with Section 34, IPC and no interference is called for. The appeal, therefore, deserves to be dismissed. 13. Having heard learned counsel for the parties, in our opinion, the appeal deserves to be partly allowed. From the evidence of prosecution witnesses and the findings recorded by both the Courts in the light of evidence of PW9-Dr. Kakkar, it was proved beyond reasonable doubt that the cause of death of Santro was asphyxia due to smothering. An impression was sought to be created by the accused that cause of death was electrocution but from the evidence of PW10-Inspector Gulzar Singh, the possibility was ruled out. It was also established from medical evidence that the death was not due to ailment of Epilepsy. Both the Courts, in our opinion, therefore, were right in coming to the conclusion that death of Santro was homicidal in nature and the cause of death was Asphyxia due to smothering. 14. The Courts below were right in not relying upon the deposition of DW1-Shero and in observing that she was under pressure as she was staying at matrimonial home and with a view to protect her, she deposed in favour of her in-laws as she wanted to save them. In our opinion, it could not be said that by drawing such inference, the trial Court or the High Court had committed any error. This is coupled with the fact that a show was made by the accused persons to mislead the police and investigating agency by placing electric wire near the dead body of deceased Santro and also putting forward a ground of death as ailment of Epilepsy, ruled out by medical evidence. 15. There was motive on the part of the accused in doing away with Santro. Though both the Courts had not believed the case of demand of dowry and cruelty towards deceased Santro for non-payment of sufficient dowry by the parents of deceased Santro in view of the circumstance that another sister Shero married to one of the brothers of Raghbir Singh had not stated anything as to demand of dowry by the accused persons and she was living at the matrimonial home peacefully, it has come on record that Santro was not good-looking lady. Moreover, though her marriage was performed with Raghbir Singh in 1988 along with Shero, for about 10 years i.e. upto 1997, she could not conceive and could not bear a child. Raghbir Singh was totally indifferent and abandoned her. So much so that complaints were made by PW2-Lakhmi Chand (father of deceased Santro) to Panchayat and Panchayat had to intervene. In 1997, finally, the Panchayat practically forced the family members of the accused to accept Santro and keep her in their family and it was because of the compulsion and pressure of Panchayat that accused had to agree to marriage between Jagdish and Santro. Thus, there was every reason for the accused to be unhappy with deceased Santro. This is further clear from the fact that on the intervening night of 1st and 2nd May, 1998, she was alone in her room on the ground floor and the dead body of deceased Santro was found in the morning of May 2, 1998 from the house of the accused. 16. But, there is no evidence that parents of the accused No.3-Jagdish i.e. accused Nos. 1 & 4 and former husband of the deceased-accused No.2-Raghbir Singh had common intention to kill deceased Santro and they were parties in killing the deceased. It is no doubt true that Jagdish, who was the present husband, had grievance against Santro. He had to marry Santro who was neither beautiful nor able to bear child. The marriage was subsisting. After Santro married to Jagdish in 1997, he was unhappy as she could not conceive. Presumably because of that, he was also indifferent towards her and in the intervening night of May 1 & 2, 1998, he was not along with her in the company of his wife in the room where she was sleeping but was on the roof along with other family members. But, in view of the fact that accused Nos. 1, 2 & 4 could not be said to be directly connected with the death of Santro, in absence of clear evidence to that effect, the Courts below could not have convicted them by invoking Section 34, IPC. So-called extra judicial confession by Smt. Sona Devi, accused No.4 before Gaje Singh and Amar Singh has not been proved. Direct, immediate and proximate grievance at the relevant time was for accused Jagdish. Hence, his conviction for an offence punishable under Section 302, IPC recorded by the trial Court and confirmed by the High Court cannot be said to be contrary to law or otherwise unlawful. But there was no sufficient evidence as to common intention on the part of the other accused in absence of requisite material on record. In our considered opinion, therefore, Section 34, IPC could not have been invoked by the Courts below. To that extent, therefore, both the judgments deserve to be set aside. 17. For the foregoing reasons, the
### Response:
1
### Explanation:
In our opinion,the appeal deserves to be partly allowed. From the evidence of prosecution witnesses and the findings recorded by both the Courts in the light of evidence of PW9-Dr. Kakkar, it was proved beyond reasonable doubt that the cause of death of Santro was asphyxia due to smothering. An impression was sought to be created by the accused that cause of death was electrocution but from the evidence of PW10-Inspector Gulzar Singh, the possibility was ruled out. It was also established from medical evidence that the death was not due to ailment of Epilepsy. Both the Courts, in our opinion, therefore, were right in coming to the conclusion that death of Santro was homicidal in nature and the cause of death was Asphyxia due toCourts below were right in not relying upon the deposition of DW1-Shero and in observing that she was under pressure as she was staying at matrimonial home and with a view to protect her, she deposed in favour of her in-laws as she wanted to save them.In our opinion,it could not be said that by drawing such inference, the trial Court or the High Court had committed any error. This is coupled with the fact that a show was made by the accused persons to mislead the police and investigating agency by placing electric wire near the dead body of deceased Santro and also putting forward a ground of death as ailment of Epilepsy, ruled out by medicalwas motive on the part of the accused in doing away with Santro. Though both the Courts had not believed the case of demand of dowry and cruelty towards deceased Santro for non-payment of sufficient dowry by the parents of deceased Santro in view of the circumstance that another sister Shero married to one of the brothers of Raghbir Singh had not stated anything as to demand of dowry by the accused persons and she was living at the matrimonial home peacefully, it has come on record that Santro was not good-looking lady. Moreover, though her marriage was performed with Raghbir Singh in 1988 along with Shero, for about 10 years i.e. upto 1997, she could not conceive and could not bear a child. Raghbir Singh was totally indifferent and abandoned her. So much so that complaints were made by PW2-Lakhmi Chand (father of deceased Santro) to Panchayat and Panchayat had to intervene. In 1997, finally, the Panchayat practically forced the family members of the accused to accept Santro and keep her in their family and it was because of the compulsion and pressure of Panchayat that accused had to agree to marriage between Jagdish and Santro. Thus, there was every reason for the accused to be unhappy with deceased Santro. This is further clear from the fact that on the intervening night of 1st and 2nd May, 1998, she was alone in her room on the ground floor and the dead body of deceased Santro was found in the morning of May 2, 1998 from the house of thethere is no evidence that parents of the accused No.3-Jagdish i.e. accused Nos. 1 & 4 and former husband of the deceased-accused No.2-Raghbir Singh had common intention to kill deceased Santro and they were parties in killing the deceased. It is no doubt true that Jagdish, who was the present husband, had grievance against Santro. He had to marry Santro who was neither beautiful nor able to bear child. The marriage was subsisting. After Santro married to Jagdish in 1997, he was unhappy as she could not conceive. Presumably because of that, he was also indifferent towards her and in the intervening night of May 1 & 2, 1998, he was not along with her in the company of his wife in the room where she was sleeping but was on the roof along with other family members. But, in view of the fact that accused Nos. 1, 2 & 4 could not be said to be directly connected with the death of Santro, in absence of clear evidence to that effect, the Courts below could not have convicted them by invoking Section 34, IPC. So-called extra judicial confession by Smt. Sona Devi, accused No.4 before Gaje Singh and Amar Singh has not been proved. Direct, immediate and proximate grievance at the relevant time was for accused Jagdish. Hence, his conviction for an offence punishable under Section 302, IPC recorded by the trial Court and confirmed by the High Court cannot be said to be contrary to law or otherwise unlawful. But there was no sufficient evidence as to common intention on the part of the other accused in absence of requisite material on record. In our considered opinion, therefore, Section 34, IPC could not have been invoked by the Courts below. To that extent, therefore, both the judgments deserve to be set aside.
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Sai Bhaskar Iron Ltd Vs. A.P.Elect.Regul.Commission | to subsidy by the State Government is not at all attracted. The matter involved in the present cases is not of subsidy but determination of fuel surcharge formula. Thus, the submission based upon the violation of the provision of section 65 is wholly unwarranted and is liable to be rejected as subsidy has not been included in the determination of fuel surcharge. It cannot be invalidated on the ground of violation of provisions contained in section 65 of the Act of 2003. In Re : Lapse of Regulations of 1999 : 37. Next submission raised on behalf of the appellants is that the Regulations of 1999 as amended in 2003 being the tariff regulation under the Act of 1998, ceased to have effect on 10.6.2004 after one year from the date of coming into force of the said Act, by reason of proviso to section 61 of the Act of 2003. The submission raised is untenable for various reasons. First is that regulations have been framed with effect from 10.6.2004. The proviso to section 61 of the Act of 2003 makes it clear that the terms and conditions for determination of tariff and the enactment specified in the Schedule as they stood before the appointed date, shall continue to apply for a period of one year or until the terms and conditions for tariff are specified under section 61, whichever is earlier. Thus, the tariff regulations framed under the Act of 1998 would remain in force for maximum period of one year and the regulations had been framed with effect from 10.6.2004 and the Transitory Regulations have been enacted vide Regulations of 2004 by the Commission. Regulation 2 of said Regulations of 2004 clearly provides that Regulations of 1999 as amended from time to time under the Act of 1998 shall apply as regulation under the Electricity Act, 2003 and shall remain in force or till new regulations are notified by the Commission under the Act of 2003. Even if earlier Regulations of 1999 came to an end on 10.6.2004 and if it is further assumed without deciding that the Commission had no authority to enact retrospectively, in our opinion, it could have adopted the Regulations of 1999 as amended, framed under the Act of 1998 shall continue, to apply for future. Considering the period in question involved in the matter, it cannot be said to be Regulations of 1999, as amended, are inoperative as they have been adopted vide Regulation No.9/2004. With respect to the fuel surcharge adjustment no provision has been made in the regulations framed in the year 2005. On facts also, the Regulation 45-B was implemented subsequently and had been again amended in the year 2013. It has operated for more than a decade for determination of FSA. In Re : Procedural lapse in framing Regulations : 38. The submission raised that amended Regulations were without previous publication as envisaged under section 181(3) of the Act of 2003, as such they are void due to non-compliance of the said provision. It is apparent that Regulation 9/2004 was previously notified as mentioned in the notification itself. A draft of regulations was published seeking suggestions and comments. No suggestions for changes/modification were submitted. As such the regulations are in compliance with the provision of section 181 read with section 61. Thus we find no violation of the provision of section 181(3). The contention that there was no previous publication is factually incorrect. Effect of Regulations of 2005 : 39. Submission raised that the FSA can be realized in terms of the Regulations of 2005 cannot be accepted for the simple reason that the Regulations of 2005 do not deal with FSA and there is a saving clause as provided in Regulation 24. Moreover, the Act of 1998 had not been repealed and there was re-adoption of the Regulations of 1999 in the year 2004. It is also factually incorrect submission that FSA had been realized under the Regulations of 2005 after framing of the said regulations. In fact FSA had been determined as rightly contended on behalf of the Commission under Regulation 45-B as amended in 2003 for more than a decade. A challenge had been raised for the first time after 10 years. It is obvious that the parties clearly understood Regulation 45-B is in vogue and in fact it legally prevailed and rightly followed. 40. It was also submitted that Regulation 6(4) of Regulations of 2005 provides that ARR shall contain power purchase cost for each year of the controlled period. It is clear from ARR as defined in Regulations of 2005 and FSA that they do not run counter to each other but are supplementary. The Regulations of 2005 do not deal with determination of fuel surcharge. Regulation 45-B cannot be said to be invalid for the aforesaid reason. 41. There is a saving clause contained in Regulation 24 of Regulations of 2005. Regulation 12.4 provides that the distribution licensee shall be entitled to recover or refund as the case may be the charges on account of fuel surcharge adjustment as approved by the Commission from time to time suo motu or based on the filing made by the institution company as the Commission may deem fit. The provisions of the Act provided that the formula has to be specified by the Commission for FSA and this has been specified only in Regulation 45-B which has been adopted in the year 2004 for continuance by the Commission. The Commission had adopted the said regulations and the same continues to be in operation. Conclusion : 42. In our opinion, the challenge made by the appellants is unworthy of acceptance. Fuel surcharge is really a surcharge levied to meet increased cost of generation and purchase of electricity and the scope cannot be circumscribed by its nomenclature. Thus the formula in Regulation 45B and the FSA determined by the Commission would take into consideration various factors which result in the increased cost of generation and purchase of electricity. | 0[ds]42. In our opinion, the challenge made by the appellants is unworthy of acceptance. Fuel surcharge is really a surcharge levied to meet increased cost of generation and purchase of electricity and the scope cannot be circumscribed by its nomenclature. Thus the formula in Regulation 45B and the FSA determined by the Commission would take into consideration various factors which result in the increased cost of generation and purchase of | 0 | 17,660 | 79 | ### 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 subsidy by the State Government is not at all attracted. The matter involved in the present cases is not of subsidy but determination of fuel surcharge formula. Thus, the submission based upon the violation of the provision of section 65 is wholly unwarranted and is liable to be rejected as subsidy has not been included in the determination of fuel surcharge. It cannot be invalidated on the ground of violation of provisions contained in section 65 of the Act of 2003. In Re : Lapse of Regulations of 1999 : 37. Next submission raised on behalf of the appellants is that the Regulations of 1999 as amended in 2003 being the tariff regulation under the Act of 1998, ceased to have effect on 10.6.2004 after one year from the date of coming into force of the said Act, by reason of proviso to section 61 of the Act of 2003. The submission raised is untenable for various reasons. First is that regulations have been framed with effect from 10.6.2004. The proviso to section 61 of the Act of 2003 makes it clear that the terms and conditions for determination of tariff and the enactment specified in the Schedule as they stood before the appointed date, shall continue to apply for a period of one year or until the terms and conditions for tariff are specified under section 61, whichever is earlier. Thus, the tariff regulations framed under the Act of 1998 would remain in force for maximum period of one year and the regulations had been framed with effect from 10.6.2004 and the Transitory Regulations have been enacted vide Regulations of 2004 by the Commission. Regulation 2 of said Regulations of 2004 clearly provides that Regulations of 1999 as amended from time to time under the Act of 1998 shall apply as regulation under the Electricity Act, 2003 and shall remain in force or till new regulations are notified by the Commission under the Act of 2003. Even if earlier Regulations of 1999 came to an end on 10.6.2004 and if it is further assumed without deciding that the Commission had no authority to enact retrospectively, in our opinion, it could have adopted the Regulations of 1999 as amended, framed under the Act of 1998 shall continue, to apply for future. Considering the period in question involved in the matter, it cannot be said to be Regulations of 1999, as amended, are inoperative as they have been adopted vide Regulation No.9/2004. With respect to the fuel surcharge adjustment no provision has been made in the regulations framed in the year 2005. On facts also, the Regulation 45-B was implemented subsequently and had been again amended in the year 2013. It has operated for more than a decade for determination of FSA. In Re : Procedural lapse in framing Regulations : 38. The submission raised that amended Regulations were without previous publication as envisaged under section 181(3) of the Act of 2003, as such they are void due to non-compliance of the said provision. It is apparent that Regulation 9/2004 was previously notified as mentioned in the notification itself. A draft of regulations was published seeking suggestions and comments. No suggestions for changes/modification were submitted. As such the regulations are in compliance with the provision of section 181 read with section 61. Thus we find no violation of the provision of section 181(3). The contention that there was no previous publication is factually incorrect. Effect of Regulations of 2005 : 39. Submission raised that the FSA can be realized in terms of the Regulations of 2005 cannot be accepted for the simple reason that the Regulations of 2005 do not deal with FSA and there is a saving clause as provided in Regulation 24. Moreover, the Act of 1998 had not been repealed and there was re-adoption of the Regulations of 1999 in the year 2004. It is also factually incorrect submission that FSA had been realized under the Regulations of 2005 after framing of the said regulations. In fact FSA had been determined as rightly contended on behalf of the Commission under Regulation 45-B as amended in 2003 for more than a decade. A challenge had been raised for the first time after 10 years. It is obvious that the parties clearly understood Regulation 45-B is in vogue and in fact it legally prevailed and rightly followed. 40. It was also submitted that Regulation 6(4) of Regulations of 2005 provides that ARR shall contain power purchase cost for each year of the controlled period. It is clear from ARR as defined in Regulations of 2005 and FSA that they do not run counter to each other but are supplementary. The Regulations of 2005 do not deal with determination of fuel surcharge. Regulation 45-B cannot be said to be invalid for the aforesaid reason. 41. There is a saving clause contained in Regulation 24 of Regulations of 2005. Regulation 12.4 provides that the distribution licensee shall be entitled to recover or refund as the case may be the charges on account of fuel surcharge adjustment as approved by the Commission from time to time suo motu or based on the filing made by the institution company as the Commission may deem fit. The provisions of the Act provided that the formula has to be specified by the Commission for FSA and this has been specified only in Regulation 45-B which has been adopted in the year 2004 for continuance by the Commission. The Commission had adopted the said regulations and the same continues to be in operation. Conclusion : 42. In our opinion, the challenge made by the appellants is unworthy of acceptance. Fuel surcharge is really a surcharge levied to meet increased cost of generation and purchase of electricity and the scope cannot be circumscribed by its nomenclature. Thus the formula in Regulation 45B and the FSA determined by the Commission would take into consideration various factors which result in the increased cost of generation and purchase of electricity.
### Response:
0
### Explanation:
42. In our opinion, the challenge made by the appellants is unworthy of acceptance. Fuel surcharge is really a surcharge levied to meet increased cost of generation and purchase of electricity and the scope cannot be circumscribed by its nomenclature. Thus the formula in Regulation 45B and the FSA determined by the Commission would take into consideration various factors which result in the increased cost of generation and purchase of
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Y. Mahaboob Sheriff & Sons & Others Vs. Mysore State Transport Authority & Others | in the Act by the Amending Act No. 109 of 1956, the amendments made by the State legislatures earlier fell through and the Central legislature did not think it fit to give power to the State legislatures to reduce the period below three years in the case of a permit. If it were intended that a permit may be granted for less than three years and a renewal may be made also for less than three years, we would have expected some provision to that effect in the Amending Act of 1956, for the Central legislature could not be unaware of the amendments made by the various State legislatures.In the circumstances we are of opinion that the duration of a permit under S. 58(1) (a) being not less than three years and more than five years, the same applies to a renewal. We therefore hold that reading Ss. 58(1)(a) and 58(2) together, a renewal must also be governed by the same provision which governs the duration of a permit. This brings us to the question of relief to be granted to the petitioners. It is contended on behalf of the Department that all that this Court can do is to quash the order of 15-12-1958, and send the case back to the Authority for consideration of the question of renewal afresh.On the other hand, the petitioners contend that this Court should quash the illegal condition limiting the duration of the renewal to one year and direct the Authority to specify a period of not less than three years and not more than five years in conformity with S. 58(1)(a) in the order of renewal. This raises the question of severability of a part of the order passed by the Authority. The principles on which any unconstitutional provision can be severed and struck down leaving other parts of a statute untouched were laid down by this Court in R. M. D. Chamarbaugwalla v. Union of India, 1957 SCR 930 : ( (S) AIR 1957 SC 628 ) and the first principle is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid.This principle relating to statutes was extended by this Court to orders in Sewpujanrai Indrasanrai Ltd. v. The Collector of Customs, 1959 SCR 821 : (AIR 1958 SC 845 ), where a part of the order of the Collector of Customs was quashed. The question therefore resolves into this: would the Authority have ordered renewal if it knew that it could not reduce the period of a permit to below three years? Looking at the facts of these cases which we have set out earlier, it is to our mind obvious that the Authority would have granted renewal in the circumstances of these cases when it did so in December 1958. The previous permits in these cases had expired on 31-3-1958, and the petitioners had been plying their stage carriages right up to the time when the order was passed on 15-12-1958; they could not do so without a permit in view of S. 42 of the Act. Therefore, renewal in these cases was certain when the order was passed on 15-12-1958. In the circumstances it is open to us to sever the illegal part of the order from the part which is legal, namely, the grant of the renewal. 11. The next question is what order should be passed in the circumstances. This depends on the exigencies of each case, for this Court is not confined by the technical rules relating to issue of writs by the English Courts. In T. C. Basappa v. T. Nagappa, 1955-1 SCR 250 : (AIR 1954 SC 440 ), this Court observed as follows at p. 256 (of SCR): (at p. 443 of AIR):"The language used in Arts. 32 and 226 of our Constitution is very wide and the powers of the S. C. as well as of all the High Courts in India extend to issuing of orders, writs or directions including writs in the nature of habeas corpus, mandamus, quo warranto, prohibition and certiorari as may be considered necessary for enforcement of the fundamental rights and in the case of the High Courts, for other purposes as well. In view of the express provision in our Constitution we need not look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law." It is therefore open to us to issue a direction in the nature of mandamus requiring the Authority to follow the law as laid down by this Court in respect to the order of renewal granted by it in accordance with S. 58(1)(a) .It is true that where it is a case of discretion of an authority, this Court will only quash the order and ask the authority to reconsider the matter if the discretion has not been properly exercised. But in this case, the discretion, is not absolute; it is circumscribed by the provisions of S. 58(1)(a), which lays down a duty on the Authority which grants a renewal to specify a period which is not less than three years and not more than five years. The duty being laid on the Authority which has in this case decided to grant a renewal to specify a period not less than three and now more than five years as the duration of the renewal, it is in our opinion open to this Court to direct the Authority to carry out the duty laid on it by S. 58(1)(a) read with S. 58(2), when it has granted the renewal. | 1[ds]8. The Department went up in appeal against this order which was allowed in March 1959 and the Authorities were directed to reconsider the applications. In the meantime the Regional Transport Authority, Bangalore, ordered in January 1959 that the applications for renewal should be re-notified and this was done. Upon this, the Department wrote again to the Bangalore Authority on 20-2-1959, not to renew the permits of the petitioners. Eventually, the Regional Transport Authority, Bangalore, met on 29-3-1959; and renewed permits relating to certain other routes for three years while the applications of the present petitioners were postponed. There was another meeting on 30-4-1959, when the permits of the petitioners were renewed till 30-9-1959. It is this order which is being challenged by the present petition. The petitioners case is that they are entitled to carry on the business of transport of passengers as a fundamental right guaranteed to them under Art. 19(1)(g) of the Constitution, and that this right can only be restricted in the manner provided by the Act which is a regulatory measure dealing with motor vehicles. They contend that they were entitled under S. 58 of the Act to renewal of their permits for at least three years in case the Authorities decided to grant renewal on the applications which they had made in January 1958 and in so far as the Authorities gave them renewal only upto 30-9-1958, they were acting in contravention of the Act and were thus committing a breach of their fundamental right. They therefore pray that this Court should come to their aid and protect their fundamental right to carry on the business of transport in accordance with the Act. The prayer which they actually made is somewhat inartistic but in effect they want that the Authorities be directed to renew their permits in accordance with the Act, which requires that the renewal must be for a period of not less than three years and not more than five years so far as stage carriage permits are concerned15. This case is similar to Writ Petitions Nos. 54 and 75 of 1959, in which judgment has been just delivered to day and raises the same two questions which have been raised there. The only different is that there is no scheme prepared under Chapter IV-A in connection with the routes with which we are concerned here. We have considered the interpretation of S. 58(2) read with S. 58(1)(a) in Writ Petitions Nos. 75 and 54 of 1959 and the form of the order to be passed. For reasons given in those petitions, we are of opinion that this petition should be allowed. | 1 | 4,973 | 491 | ### 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:
in the Act by the Amending Act No. 109 of 1956, the amendments made by the State legislatures earlier fell through and the Central legislature did not think it fit to give power to the State legislatures to reduce the period below three years in the case of a permit. If it were intended that a permit may be granted for less than three years and a renewal may be made also for less than three years, we would have expected some provision to that effect in the Amending Act of 1956, for the Central legislature could not be unaware of the amendments made by the various State legislatures.In the circumstances we are of opinion that the duration of a permit under S. 58(1) (a) being not less than three years and more than five years, the same applies to a renewal. We therefore hold that reading Ss. 58(1)(a) and 58(2) together, a renewal must also be governed by the same provision which governs the duration of a permit. This brings us to the question of relief to be granted to the petitioners. It is contended on behalf of the Department that all that this Court can do is to quash the order of 15-12-1958, and send the case back to the Authority for consideration of the question of renewal afresh.On the other hand, the petitioners contend that this Court should quash the illegal condition limiting the duration of the renewal to one year and direct the Authority to specify a period of not less than three years and not more than five years in conformity with S. 58(1)(a) in the order of renewal. This raises the question of severability of a part of the order passed by the Authority. The principles on which any unconstitutional provision can be severed and struck down leaving other parts of a statute untouched were laid down by this Court in R. M. D. Chamarbaugwalla v. Union of India, 1957 SCR 930 : ( (S) AIR 1957 SC 628 ) and the first principle is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid.This principle relating to statutes was extended by this Court to orders in Sewpujanrai Indrasanrai Ltd. v. The Collector of Customs, 1959 SCR 821 : (AIR 1958 SC 845 ), where a part of the order of the Collector of Customs was quashed. The question therefore resolves into this: would the Authority have ordered renewal if it knew that it could not reduce the period of a permit to below three years? Looking at the facts of these cases which we have set out earlier, it is to our mind obvious that the Authority would have granted renewal in the circumstances of these cases when it did so in December 1958. The previous permits in these cases had expired on 31-3-1958, and the petitioners had been plying their stage carriages right up to the time when the order was passed on 15-12-1958; they could not do so without a permit in view of S. 42 of the Act. Therefore, renewal in these cases was certain when the order was passed on 15-12-1958. In the circumstances it is open to us to sever the illegal part of the order from the part which is legal, namely, the grant of the renewal. 11. The next question is what order should be passed in the circumstances. This depends on the exigencies of each case, for this Court is not confined by the technical rules relating to issue of writs by the English Courts. In T. C. Basappa v. T. Nagappa, 1955-1 SCR 250 : (AIR 1954 SC 440 ), this Court observed as follows at p. 256 (of SCR): (at p. 443 of AIR):"The language used in Arts. 32 and 226 of our Constitution is very wide and the powers of the S. C. as well as of all the High Courts in India extend to issuing of orders, writs or directions including writs in the nature of habeas corpus, mandamus, quo warranto, prohibition and certiorari as may be considered necessary for enforcement of the fundamental rights and in the case of the High Courts, for other purposes as well. In view of the express provision in our Constitution we need not look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law." It is therefore open to us to issue a direction in the nature of mandamus requiring the Authority to follow the law as laid down by this Court in respect to the order of renewal granted by it in accordance with S. 58(1)(a) .It is true that where it is a case of discretion of an authority, this Court will only quash the order and ask the authority to reconsider the matter if the discretion has not been properly exercised. But in this case, the discretion, is not absolute; it is circumscribed by the provisions of S. 58(1)(a), which lays down a duty on the Authority which grants a renewal to specify a period which is not less than three years and not more than five years. The duty being laid on the Authority which has in this case decided to grant a renewal to specify a period not less than three and now more than five years as the duration of the renewal, it is in our opinion open to this Court to direct the Authority to carry out the duty laid on it by S. 58(1)(a) read with S. 58(2), when it has granted the renewal.
### Response:
1
### Explanation:
8. The Department went up in appeal against this order which was allowed in March 1959 and the Authorities were directed to reconsider the applications. In the meantime the Regional Transport Authority, Bangalore, ordered in January 1959 that the applications for renewal should be re-notified and this was done. Upon this, the Department wrote again to the Bangalore Authority on 20-2-1959, not to renew the permits of the petitioners. Eventually, the Regional Transport Authority, Bangalore, met on 29-3-1959; and renewed permits relating to certain other routes for three years while the applications of the present petitioners were postponed. There was another meeting on 30-4-1959, when the permits of the petitioners were renewed till 30-9-1959. It is this order which is being challenged by the present petition. The petitioners case is that they are entitled to carry on the business of transport of passengers as a fundamental right guaranteed to them under Art. 19(1)(g) of the Constitution, and that this right can only be restricted in the manner provided by the Act which is a regulatory measure dealing with motor vehicles. They contend that they were entitled under S. 58 of the Act to renewal of their permits for at least three years in case the Authorities decided to grant renewal on the applications which they had made in January 1958 and in so far as the Authorities gave them renewal only upto 30-9-1958, they were acting in contravention of the Act and were thus committing a breach of their fundamental right. They therefore pray that this Court should come to their aid and protect their fundamental right to carry on the business of transport in accordance with the Act. The prayer which they actually made is somewhat inartistic but in effect they want that the Authorities be directed to renew their permits in accordance with the Act, which requires that the renewal must be for a period of not less than three years and not more than five years so far as stage carriage permits are concerned15. This case is similar to Writ Petitions Nos. 54 and 75 of 1959, in which judgment has been just delivered to day and raises the same two questions which have been raised there. The only different is that there is no scheme prepared under Chapter IV-A in connection with the routes with which we are concerned here. We have considered the interpretation of S. 58(2) read with S. 58(1)(a) in Writ Petitions Nos. 75 and 54 of 1959 and the form of the order to be passed. For reasons given in those petitions, we are of opinion that this petition should be allowed.
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M/S. RUCHI SOYA INDUSTRIES LTD Vs. UNION OF INDIA & ORS | 1. These appeals challenge the judgment and order dated 20th January, 2012 passed by the Division Bench of the High Court of Karnataka in Writ Petition No. 25290 of 2002 (TAR) and Writ Petition No. 25291 of 2002 (TAR), thereby dismissing the writ petitions filed by present appellant. 2. The writ petitions were basically filed with a prayer seeking issuance of mandamus directing that, the Notification No. 38 of 2002- Cus(N.T.) dated 13th June, 2002 was not applicable to the imported goods consisting of 1647.414 metric tonnes of crude palmolein covered under the Bill of Entry for Home Consumption dated 12th June, 2002. 3. The aforesaid writ petitions were rejected. Being aggrieved, the present appeals are filed. 4. The appellant has filed the I.A. No. 85939 of 2021 for pointing out the subsequent developments and the disposal of the appeal in terms thereof. 5. It is not in dispute that during the pendency of the present proceedings, the Standard Chartered Bank had filed proceedings before the National Company Law Tribunal, Mumbai (hereinafter referred to as the NCLT) in respect of the present appellant under the provisions of Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the IBC). 6. The application of the Standard Chartered Bank under Section 7 of the IBC for initiation of Corporate Insolvency Resolution Process (hereinafter referred to as the CIRP) came to be admitted by the learned Adjudicating Authority on 15th December, 2017. 7. After the procedure, as required under the various provisions of the IBC was completed, an application under Section 30 (6) of the IBC came to be filed by the Resolution Professional for the grant of approval of the Resolution Plan of the successful Resolution Applicant. 8. Vide order dated 24th July, 2019 read with order dated 04th September, 2019, the application of the Resolution Professional for the grant of approval of the Resolution Plan of the successful Resolution Applicant came to be allowed. As such, the management of the appellant came to be vested in the successful Resolution Applicant. 9. The short point that is involved is as to whether the claim of the present respondent which was admittedly not lodged before the Resolution Professional after public notices were issued under Sections 13 and 15 of the IBC could be considered at this stage. 10. We have heard Mr. Parag P. Tripathi, learned Senior Counsel appearing for the appellant and Ms. Nisha Bagchi, learned counsel appearing for the respondent no. 2/Revenue. 11. Mr. Tripathi, learned Senior Counsel appearing for the appellant, has submitted that the present case is squarely covered by the law laid down by this Court in the case of Ghanashyam Mishra & Sons Pvt. Ltd. vs. Edelweiss Asset Reconstruction Company Ltd. & Ors. (2021) 9 SCC 657 . He submits that as a matter of fact, the office of the respondent no. 2 at Mangalore itself had lodged a claim before the Resolution Professional in respect of one of their demands. However, so far as the demand, which is the subject matter of the present proceedings is concerned, no claim was lodged in respect thereof, and as such, in view of the law laid down by this Court while interpreting Section 31 of the IBC, the respondents are now not entitled to claim any amount, which is not a part of the Resolution Plan. 12. Ms. Bagchi, learned counsel appearing for the respondent no. 2/Revenue, on the contrary submits that no notice was issued to the Authority at Mangalore. She further submits that there was certain confusion as to whether the operational debt as defined under Section 5(21) of the IBC would cover the claim of the respondent no. 2/Revenue. It is, therefore, submitted that in view of said confusion, there is a possibility that the office of the respondent no.2 might not have lodged the claim with respect to the present proceedings. 13. We find that the present appeals are squarely covered by the law laid down by this Court in the case of Ghanashyam Mishra (supra). It will be relevant to refer to Paragraph 102 of the said judgment which reads as under: 102. In the result, we answer the questions framed by us as under: 102.1. That once a resolution plan is duly approved by the adjudicating authority under sub-section (1) of Section 31, the claims as provided in the resolution plan shall stand frozen and will be binding on the corporate debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority, guarantors and other stakeholders. On the date of approval of resolution plan by the adjudicating authority, all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in re- spect to a claim, which is not part of the resolution plan. 102.2. The 2019 Amendment to Section 31 of the I&B Code is clarificatory and declaratory in nature and therefore will be effective from the date on which the I&B Code has come into effect. 102.3. Consequently all the dues including the statutory dues owed to the Central Government, any State Government or any local authority, if not part of the resolution plan, shall stand extinguished and no proceedings in respect of such dues for the period prior to the date on which the adjudicating authority grants its approval under Section 31 could be continued. 14. Admittedly, the claim in respect of the demand which is the subject matter of the present proceedings was not lodged by the respondent no. 2 after public announcements were issued under Sections 13 and 15 of the IBC. As such, on the date on which the Resolution Plan was approved by the learned NCLT, all claims stood frozen, and no claim, which is not a part of the Resolution Plan, would survive. | 1[ds]13. We find that the present appeals are squarely covered by the law laid down by this Court in the case of Ghanashyam Mishra (supra). It will be relevant to refer to Paragraph 102 of the said judgment which reads as under:102. In the result, we answer the questions framed by us as under:102.1. That once a resolution plan is duly approved by the adjudicating authority under sub-section (1) of Section 31, the claims as provided in the resolution plan shall stand frozen and will be binding on the corporate debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority, guarantors and other stakeholders. On the date of approval of resolution plan by the adjudicating authority, all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in re- spect to a claim, which is not part of the resolution plan.102.2. The 2019 Amendment to Section 31 of the I&B Code is clarificatory and declaratory in nature and therefore will be effective from the date on which the I&B Code has come into effect.102.3. Consequently all the dues including the statutory dues owed to the Central Government, any State Government or any local authority, if not part of the resolution plan, shall stand extinguished and no proceedings in respect of such dues for the period prior to the date on which the adjudicating authority grants its approval under Section 31 could be continued.14. Admittedly, the claim in respect of the demand which is the subject matter of the present proceedings was not lodged by the respondent no. 2 after public announcements were issued under Sections 13 and 15 of the IBC. As such, on the date on which the Resolution Plan was approved by the learned NCLT, all claims stood frozen, and no claim, which is not a part of the Resolution Plan, would survive. | 1 | 1,115 | 370 | ### 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:
1. These appeals challenge the judgment and order dated 20th January, 2012 passed by the Division Bench of the High Court of Karnataka in Writ Petition No. 25290 of 2002 (TAR) and Writ Petition No. 25291 of 2002 (TAR), thereby dismissing the writ petitions filed by present appellant. 2. The writ petitions were basically filed with a prayer seeking issuance of mandamus directing that, the Notification No. 38 of 2002- Cus(N.T.) dated 13th June, 2002 was not applicable to the imported goods consisting of 1647.414 metric tonnes of crude palmolein covered under the Bill of Entry for Home Consumption dated 12th June, 2002. 3. The aforesaid writ petitions were rejected. Being aggrieved, the present appeals are filed. 4. The appellant has filed the I.A. No. 85939 of 2021 for pointing out the subsequent developments and the disposal of the appeal in terms thereof. 5. It is not in dispute that during the pendency of the present proceedings, the Standard Chartered Bank had filed proceedings before the National Company Law Tribunal, Mumbai (hereinafter referred to as the NCLT) in respect of the present appellant under the provisions of Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the IBC). 6. The application of the Standard Chartered Bank under Section 7 of the IBC for initiation of Corporate Insolvency Resolution Process (hereinafter referred to as the CIRP) came to be admitted by the learned Adjudicating Authority on 15th December, 2017. 7. After the procedure, as required under the various provisions of the IBC was completed, an application under Section 30 (6) of the IBC came to be filed by the Resolution Professional for the grant of approval of the Resolution Plan of the successful Resolution Applicant. 8. Vide order dated 24th July, 2019 read with order dated 04th September, 2019, the application of the Resolution Professional for the grant of approval of the Resolution Plan of the successful Resolution Applicant came to be allowed. As such, the management of the appellant came to be vested in the successful Resolution Applicant. 9. The short point that is involved is as to whether the claim of the present respondent which was admittedly not lodged before the Resolution Professional after public notices were issued under Sections 13 and 15 of the IBC could be considered at this stage. 10. We have heard Mr. Parag P. Tripathi, learned Senior Counsel appearing for the appellant and Ms. Nisha Bagchi, learned counsel appearing for the respondent no. 2/Revenue. 11. Mr. Tripathi, learned Senior Counsel appearing for the appellant, has submitted that the present case is squarely covered by the law laid down by this Court in the case of Ghanashyam Mishra & Sons Pvt. Ltd. vs. Edelweiss Asset Reconstruction Company Ltd. & Ors. (2021) 9 SCC 657 . He submits that as a matter of fact, the office of the respondent no. 2 at Mangalore itself had lodged a claim before the Resolution Professional in respect of one of their demands. However, so far as the demand, which is the subject matter of the present proceedings is concerned, no claim was lodged in respect thereof, and as such, in view of the law laid down by this Court while interpreting Section 31 of the IBC, the respondents are now not entitled to claim any amount, which is not a part of the Resolution Plan. 12. Ms. Bagchi, learned counsel appearing for the respondent no. 2/Revenue, on the contrary submits that no notice was issued to the Authority at Mangalore. She further submits that there was certain confusion as to whether the operational debt as defined under Section 5(21) of the IBC would cover the claim of the respondent no. 2/Revenue. It is, therefore, submitted that in view of said confusion, there is a possibility that the office of the respondent no.2 might not have lodged the claim with respect to the present proceedings. 13. We find that the present appeals are squarely covered by the law laid down by this Court in the case of Ghanashyam Mishra (supra). It will be relevant to refer to Paragraph 102 of the said judgment which reads as under: 102. In the result, we answer the questions framed by us as under: 102.1. That once a resolution plan is duly approved by the adjudicating authority under sub-section (1) of Section 31, the claims as provided in the resolution plan shall stand frozen and will be binding on the corporate debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority, guarantors and other stakeholders. On the date of approval of resolution plan by the adjudicating authority, all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in re- spect to a claim, which is not part of the resolution plan. 102.2. The 2019 Amendment to Section 31 of the I&B Code is clarificatory and declaratory in nature and therefore will be effective from the date on which the I&B Code has come into effect. 102.3. Consequently all the dues including the statutory dues owed to the Central Government, any State Government or any local authority, if not part of the resolution plan, shall stand extinguished and no proceedings in respect of such dues for the period prior to the date on which the adjudicating authority grants its approval under Section 31 could be continued. 14. Admittedly, the claim in respect of the demand which is the subject matter of the present proceedings was not lodged by the respondent no. 2 after public announcements were issued under Sections 13 and 15 of the IBC. As such, on the date on which the Resolution Plan was approved by the learned NCLT, all claims stood frozen, and no claim, which is not a part of the Resolution Plan, would survive.
### Response:
1
### Explanation:
13. We find that the present appeals are squarely covered by the law laid down by this Court in the case of Ghanashyam Mishra (supra). It will be relevant to refer to Paragraph 102 of the said judgment which reads as under:102. In the result, we answer the questions framed by us as under:102.1. That once a resolution plan is duly approved by the adjudicating authority under sub-section (1) of Section 31, the claims as provided in the resolution plan shall stand frozen and will be binding on the corporate debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority, guarantors and other stakeholders. On the date of approval of resolution plan by the adjudicating authority, all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in re- spect to a claim, which is not part of the resolution plan.102.2. The 2019 Amendment to Section 31 of the I&B Code is clarificatory and declaratory in nature and therefore will be effective from the date on which the I&B Code has come into effect.102.3. Consequently all the dues including the statutory dues owed to the Central Government, any State Government or any local authority, if not part of the resolution plan, shall stand extinguished and no proceedings in respect of such dues for the period prior to the date on which the adjudicating authority grants its approval under Section 31 could be continued.14. Admittedly, the claim in respect of the demand which is the subject matter of the present proceedings was not lodged by the respondent no. 2 after public announcements were issued under Sections 13 and 15 of the IBC. As such, on the date on which the Resolution Plan was approved by the learned NCLT, all claims stood frozen, and no claim, which is not a part of the Resolution Plan, would survive.
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Intelgain Technologies Private Limited Vs. Regional Director, Western Region, Ministries of Corporate Affairs & Another | years. The company subsequently applied for registration of the logo under the Trade Marks Act, 1999 in the year 2002 claiming usage from 1985. However, the application in the name of the respondent No.2 company was made in the year 2006. It was pleaded before the authorities by the respondent No.2 that MRC Transolutions and its predecessors are prior adaptors, owners and users of the trade mark MRC in different forms since 1985.As already noticed, in the said case, none of the companies which was previously registered company or subsequently registered company had registered trade mark. It is, therefore, apparent that Division Bench of this Court had taken into consideration the powers of the Central Government when it exercises its suo motu discretion under section 22(1)(i). In such a case, limitation period is 12 months. Ratio of the said judgment, therefore, will not apply to the facts of the present case.13. Reliance has also been placed by the learned Counsel appearing on behalf of the Petitioner on the judgment of the Karnataka High Court in Technova Tapes (India) P. Ltd. vs. Regional Director, Ministry of Company Affairs, Southern Region and Another ([2010] 155 Comp Cas 395 (Karn)). In the said case, Petitioner-Company changed its name and registered the Company under the name Technova in the year 1995. The second Respondent had also changed its name in 1993 but the word Technova had been and was part of its corporate identity since 1979. The second Respondent filed an application under section 22 of the Companies Act, 1956 on January 6, 2004 seeking a direction to the Petitioner for deleting the word Technova or any variant thereof from its name. The Regional Director accordingly issued the said direction to the Petitioner. This was challenged before the Karnataka High Court and it was urged that the Petitioner had been using the name for almost nine years and the period of limitation prescribed under section 22 of the 1956 Act prior to the amendment in the year 2000 having expired, a subsequent amendment enlarging the period of limitation could not revive the rights which had already become barred by limitation. The Karnataka High Court, in the facts of the said case, therefore, held that second Respondents remedy under section 22 of the 1956 Act had become barred under the unamended provision and it could not as a proprietor of a registered trade mark, claim an extended period of limitation for the purpose of the Companies Act, 1956. In our view, again, the facts of the said case were entirely different and, therefore, ratio of the said judgment will not apply to the facts of the present case. We are also unable to agree with the observations made by the learned Single Judge in the said judgment, which read as under:-The language of the Section is certainly found wanting in clarity. If the section is construed, on a plain reading, that the Central Government or such other competent authority is empowered to direct rectification of the name of a company which is identical with or resembles the name of a company which is already in existence, within twelve months of the registration of such company. The proviso affording a registered proprietor of a trade mark five years time, after coming to its notice of a registered company, with an identical or nearly resembling its own registered trade mark, while there is no corresponding enabling power or jurisdiction afforded to entertain an application by the competent authority or the Central Government in the section, it is only to be implied, this is an apparent incongruity. But in order to avoid rendering the provision nugatory, where it seeks to protect the interest of a registered proprietor of a trade mark, the section would necessarily have to be given the interpretation suggested by respondent No. 2 herein, namely, that under the unamended section, the limitation of one year was prescribed for applications by a registered company. The proviso however makes a separate provision for the new category of applicants namely, the holders of registered trade marks and for such applicants, the period of five years would run from the date when the applicant who is the registered trade mark holder came to know of the existence of the company with a similar name and the limitation of one year for the authority to exercise the power would necessarily have to be read as having been enabled to accommodate the applications filed within the period contemplated under the proviso.Firstly, the said question did not fall for consideration before the learned Single Judge since the only issue involved was whether the unamended provision of section 22 would apply or amended provisions would apply and having held that proprietor of registered trade mark could not claim the extended period of limitation, it was not necessary to deal with the period of five years which was provided under section 22(1)(b). Even otherwise, we have observed the reason for giving five years time for registered proprietor of a trade mark. In our view, therefore, there is no incongruity as suggested by the learned Single Judge of Karnataka High Court nor do we agree with the observations made by the learned Single Judge in respect of the said amended proviso to section 22(1)(b). Ratio of the judgment of Calcutta High Court in Sen and Pandit Electronics Pvt. Ltd. vs. Union of India and Others (2003 Company Cases Vol. 115, page 299) also will not apply to the facts of the present case and, therefore, we do not propose to deal with the said judgment on which reliance has been placed by the learned Counsel appearing on behalf of the Petitioner.14. In our view, there is no infirmity or illegality committed by Respondent No.1 in giving direction to the Petitioner to change its name. We are therefore not interfering with the direction given by Respondent No.1 in the impugned order while exercising our writ jurisdiction under Articles 226 & 227 of the Constitution of India. | 0[ds]13. Reliance has also been placed by the learned Counsel appearing on behalf of the Petitioner on the judgment of the Karnataka High Court in Technova Tapes (India) P. Ltd. vs. Regional Director, Ministry of Company Affairs, Southern Region and Another ([2010] 155 Comp Cas 395 (Karn)). In the said case,changed its name and registered the Company under the name Technova in the year 1995. The second Respondent had also changed its name in 1993 but the word Technova had been and was part of its corporate identity since 1979. The second Respondent filed an application under section 22 of the Companies Act, 1956 on January 6, 2004 seeking a direction to the Petitioner for deleting the word Technova or any variant thereof from its name. The Regional Director accordingly issued the said direction to the Petitioner. This was challenged before the Karnataka High Court and it was urged that the Petitioner had been using the name for almost nine years and the period of limitation prescribed under section 22 of the 1956 Act prior to the amendment in the year 2000 having expired, a subsequent amendment enlarging the period of limitation could not revive the rights which had already become barred by limitation. The Karnataka High Court, in the facts of the said case, therefore, held that second Respondents remedy under section 22 of the 1956 Act had become barred under the unamended provision and it could not as a proprietor of a registered trade mark, claim an extended period of limitation for the purpose of the Companies Act, 1956. In our view, again, the facts of the said case were entirely different and, therefore, ratio of the said judgment will not apply to the facts of the present case. We are also unable to agree with the observations made by the learned Single Judge in the said judgment, which read aslanguage of the Section is certainly found wanting in clarity. If the section is construed, on a plain reading, that the Central Government or such other competent authority is empowered to direct rectification of the name of a company which is identical with or resembles the name of a company which is already in existence, within twelve months of the registration of such company. The proviso affording a registered proprietor of a trade mark five years time, after coming to its notice of a registered company, with an identical or nearly resembling its own registered trade mark, while there is no corresponding enabling power or jurisdiction afforded to entertain an application by the competent authority or the Central Government in the section, it is only to be implied, this is an apparent incongruity. But in order to avoid rendering the provision nugatory, where it seeks to protect the interest of a registered proprietor of a trade mark, the section would necessarily have to be given the interpretation suggested by respondent No. 2 herein, namely, that under the unamended section, the limitation of one year was prescribed for applications by a registered company. The proviso however makes a separate provision for the new category of applicants namely, the holders of registered trade marks and for such applicants, the period of five years would run from the date when the applicant who is the registered trade mark holder came to know of the existence of the company with a similar name and the limitation of one year for the authority to exercise the power would necessarily have to be read as having been enabled to accommodate the applications filed within the period contemplated under the proviso.Firstly, the said question did not fall for consideration before the learned Single Judge since the only issue involved was whether the unamended provision of section 22 would apply or amended provisions would apply and having held that proprietor of registered trade mark could not claim the extended period of limitation, it was not necessary to deal with the period of five years which was provided under section 22(1)(b). Even otherwise, we have observed the reason for giving five years time for registered proprietor of a trade mark. In our view, therefore, there is no incongruity as suggested by the learned Single Judge of Karnataka High Court nor do we agree with the observations made by the learned Single Judge in respect of the said amended proviso to section 22(1)(b). Ratio of the judgment of Calcutta High Court in Sen and Pandit Electronics Pvt. Ltd. vs. Union of India and Others (2003 Company Cases Vol. 115, page 299) also will not apply to the facts of the present case and, therefore, we do not propose to deal with the said judgment on which reliance has been placed by the learned Counsel appearing on behalf of the Petitioner.14. In our view, there is no infirmity or illegality committed by Respondent No.1 in giving direction to the Petitioner to change its name. We are therefore not interfering with the direction given by Respondent No.1 in the impugned order while exercising our writ jurisdiction under Articles 226227 of the Constitution of India. | 0 | 3,355 | 934 | ### 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:
years. The company subsequently applied for registration of the logo under the Trade Marks Act, 1999 in the year 2002 claiming usage from 1985. However, the application in the name of the respondent No.2 company was made in the year 2006. It was pleaded before the authorities by the respondent No.2 that MRC Transolutions and its predecessors are prior adaptors, owners and users of the trade mark MRC in different forms since 1985.As already noticed, in the said case, none of the companies which was previously registered company or subsequently registered company had registered trade mark. It is, therefore, apparent that Division Bench of this Court had taken into consideration the powers of the Central Government when it exercises its suo motu discretion under section 22(1)(i). In such a case, limitation period is 12 months. Ratio of the said judgment, therefore, will not apply to the facts of the present case.13. Reliance has also been placed by the learned Counsel appearing on behalf of the Petitioner on the judgment of the Karnataka High Court in Technova Tapes (India) P. Ltd. vs. Regional Director, Ministry of Company Affairs, Southern Region and Another ([2010] 155 Comp Cas 395 (Karn)). In the said case, Petitioner-Company changed its name and registered the Company under the name Technova in the year 1995. The second Respondent had also changed its name in 1993 but the word Technova had been and was part of its corporate identity since 1979. The second Respondent filed an application under section 22 of the Companies Act, 1956 on January 6, 2004 seeking a direction to the Petitioner for deleting the word Technova or any variant thereof from its name. The Regional Director accordingly issued the said direction to the Petitioner. This was challenged before the Karnataka High Court and it was urged that the Petitioner had been using the name for almost nine years and the period of limitation prescribed under section 22 of the 1956 Act prior to the amendment in the year 2000 having expired, a subsequent amendment enlarging the period of limitation could not revive the rights which had already become barred by limitation. The Karnataka High Court, in the facts of the said case, therefore, held that second Respondents remedy under section 22 of the 1956 Act had become barred under the unamended provision and it could not as a proprietor of a registered trade mark, claim an extended period of limitation for the purpose of the Companies Act, 1956. In our view, again, the facts of the said case were entirely different and, therefore, ratio of the said judgment will not apply to the facts of the present case. We are also unable to agree with the observations made by the learned Single Judge in the said judgment, which read as under:-The language of the Section is certainly found wanting in clarity. If the section is construed, on a plain reading, that the Central Government or such other competent authority is empowered to direct rectification of the name of a company which is identical with or resembles the name of a company which is already in existence, within twelve months of the registration of such company. The proviso affording a registered proprietor of a trade mark five years time, after coming to its notice of a registered company, with an identical or nearly resembling its own registered trade mark, while there is no corresponding enabling power or jurisdiction afforded to entertain an application by the competent authority or the Central Government in the section, it is only to be implied, this is an apparent incongruity. But in order to avoid rendering the provision nugatory, where it seeks to protect the interest of a registered proprietor of a trade mark, the section would necessarily have to be given the interpretation suggested by respondent No. 2 herein, namely, that under the unamended section, the limitation of one year was prescribed for applications by a registered company. The proviso however makes a separate provision for the new category of applicants namely, the holders of registered trade marks and for such applicants, the period of five years would run from the date when the applicant who is the registered trade mark holder came to know of the existence of the company with a similar name and the limitation of one year for the authority to exercise the power would necessarily have to be read as having been enabled to accommodate the applications filed within the period contemplated under the proviso.Firstly, the said question did not fall for consideration before the learned Single Judge since the only issue involved was whether the unamended provision of section 22 would apply or amended provisions would apply and having held that proprietor of registered trade mark could not claim the extended period of limitation, it was not necessary to deal with the period of five years which was provided under section 22(1)(b). Even otherwise, we have observed the reason for giving five years time for registered proprietor of a trade mark. In our view, therefore, there is no incongruity as suggested by the learned Single Judge of Karnataka High Court nor do we agree with the observations made by the learned Single Judge in respect of the said amended proviso to section 22(1)(b). Ratio of the judgment of Calcutta High Court in Sen and Pandit Electronics Pvt. Ltd. vs. Union of India and Others (2003 Company Cases Vol. 115, page 299) also will not apply to the facts of the present case and, therefore, we do not propose to deal with the said judgment on which reliance has been placed by the learned Counsel appearing on behalf of the Petitioner.14. In our view, there is no infirmity or illegality committed by Respondent No.1 in giving direction to the Petitioner to change its name. We are therefore not interfering with the direction given by Respondent No.1 in the impugned order while exercising our writ jurisdiction under Articles 226 & 227 of the Constitution of India.
### Response:
0
### Explanation:
13. Reliance has also been placed by the learned Counsel appearing on behalf of the Petitioner on the judgment of the Karnataka High Court in Technova Tapes (India) P. Ltd. vs. Regional Director, Ministry of Company Affairs, Southern Region and Another ([2010] 155 Comp Cas 395 (Karn)). In the said case,changed its name and registered the Company under the name Technova in the year 1995. The second Respondent had also changed its name in 1993 but the word Technova had been and was part of its corporate identity since 1979. The second Respondent filed an application under section 22 of the Companies Act, 1956 on January 6, 2004 seeking a direction to the Petitioner for deleting the word Technova or any variant thereof from its name. The Regional Director accordingly issued the said direction to the Petitioner. This was challenged before the Karnataka High Court and it was urged that the Petitioner had been using the name for almost nine years and the period of limitation prescribed under section 22 of the 1956 Act prior to the amendment in the year 2000 having expired, a subsequent amendment enlarging the period of limitation could not revive the rights which had already become barred by limitation. The Karnataka High Court, in the facts of the said case, therefore, held that second Respondents remedy under section 22 of the 1956 Act had become barred under the unamended provision and it could not as a proprietor of a registered trade mark, claim an extended period of limitation for the purpose of the Companies Act, 1956. In our view, again, the facts of the said case were entirely different and, therefore, ratio of the said judgment will not apply to the facts of the present case. We are also unable to agree with the observations made by the learned Single Judge in the said judgment, which read aslanguage of the Section is certainly found wanting in clarity. If the section is construed, on a plain reading, that the Central Government or such other competent authority is empowered to direct rectification of the name of a company which is identical with or resembles the name of a company which is already in existence, within twelve months of the registration of such company. The proviso affording a registered proprietor of a trade mark five years time, after coming to its notice of a registered company, with an identical or nearly resembling its own registered trade mark, while there is no corresponding enabling power or jurisdiction afforded to entertain an application by the competent authority or the Central Government in the section, it is only to be implied, this is an apparent incongruity. But in order to avoid rendering the provision nugatory, where it seeks to protect the interest of a registered proprietor of a trade mark, the section would necessarily have to be given the interpretation suggested by respondent No. 2 herein, namely, that under the unamended section, the limitation of one year was prescribed for applications by a registered company. The proviso however makes a separate provision for the new category of applicants namely, the holders of registered trade marks and for such applicants, the period of five years would run from the date when the applicant who is the registered trade mark holder came to know of the existence of the company with a similar name and the limitation of one year for the authority to exercise the power would necessarily have to be read as having been enabled to accommodate the applications filed within the period contemplated under the proviso.Firstly, the said question did not fall for consideration before the learned Single Judge since the only issue involved was whether the unamended provision of section 22 would apply or amended provisions would apply and having held that proprietor of registered trade mark could not claim the extended period of limitation, it was not necessary to deal with the period of five years which was provided under section 22(1)(b). Even otherwise, we have observed the reason for giving five years time for registered proprietor of a trade mark. In our view, therefore, there is no incongruity as suggested by the learned Single Judge of Karnataka High Court nor do we agree with the observations made by the learned Single Judge in respect of the said amended proviso to section 22(1)(b). Ratio of the judgment of Calcutta High Court in Sen and Pandit Electronics Pvt. Ltd. vs. Union of India and Others (2003 Company Cases Vol. 115, page 299) also will not apply to the facts of the present case and, therefore, we do not propose to deal with the said judgment on which reliance has been placed by the learned Counsel appearing on behalf of the Petitioner.14. In our view, there is no infirmity or illegality committed by Respondent No.1 in giving direction to the Petitioner to change its name. We are therefore not interfering with the direction given by Respondent No.1 in the impugned order while exercising our writ jurisdiction under Articles 226227 of the Constitution of India.
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Vijay Kumar Moti Lal Vs. State of Maharashtra | FAZAL ALI, J.1. This appeal by certificate is directed against a judgment of the Bombay High Court dated December 3, 1968 arising our of land acquisition proceedings taken under the erstwhile Hyderabad Land Acquisition Act. The admitted position, as found by the High Court, seems to be that the land in dispute is situated in the city of Jalna which is a developing town and in the neighborhood of the plot in dispute a grain market has already been built Several other municipal plots have also been sold out. Constructions like shops have come up. The land was acquired sometimes in the year 1954 and from the finding of the High Court it appears that the plots almost contiguous to the land in question have great building potentiality. A respectable witness like Mohanlal Deep Chand, who was the President of the Municipally had depose that the average sale value of such land would be Rs. 15 per square yard. In this connection the High Court observed as follows :2. Plot No. 26 which is behind plot No. 27 on the 70 feet road fetched the price at Rs. 15 per square yard. These sales have been deposed to by claimants witness No. 1 Mohanlal Deep Chand who was then the president of the Municipality. These sales have not in fact been challenged on behalf of the state. It is clear from these sales that the situation of these plots had played a very important role in the price obtained by them.3. The High Court pointed out that the evidence of Mohanlal Deep Chand had not been challenged on behalf of the State. In these circumstances therefore, this was a very reasonable and adequate basis for determining the compensation of the land in dispute. Again at another place the High Court has held that even if Rs. 15 per square yard was taken for a smaller plot in the locality as the locality was not properly developed, sufficient allowance should be given for reducing the amount of compensation. The High Court accordingly upheld the compensation awarded by the civil court 2 Rs. 2 per square yard. Having regard to the circumstances of this cases we find that there is absolutely no warrant for the High court for upholding the rate of Rs. 2 per square yard which was grossly inadequate having regard to the locality; the character of the land; the building potentiality, the coming up of the various constructions and such other factors and more particularly when the High court itself found that the evidence of the President of the Municipality remained unchallenged and was not contested by the State. Thus taking the case at the lowest even if Rs. 15 per square yard is held to be the correct sale value of the land and deducting 1/3rd as the area was to fully developed, the minimum compensation that could be awarded to the appellant would be at the rate of Rs. 10 per square yard. This Court in the case of Tribeni Devi v. Collector of Ranchi has observed that where an area is not fully developed, a deduction of 1/3rd can be made. In this Connections this court observed as follows : (SCC p. 485 para 5)In order to develop that area at least the value of 1/3 of the land will have to be deducted for roads, drainage and other amenities. | 1[ds]3. The High Court pointed out that the evidence of Mohanlal Deep Chand had not been challenged on behalf of the State. In these circumstances therefore, this was a very reasonable and adequate basis for determining the compensation of the land in dispute. Again at another place the High Court has held that even if Rs. 15 per square yard was taken for a smaller plot in the locality as the locality was not properly developed, sufficient allowance should be given for reducing the amount of compensation. The High Court accordingly upheld the compensation awarded by the civil court 2 Rs. 2 per square yard. Having regard to the circumstances of this cases we find that there is absolutely no warrant for the High court for upholding the rate of Rs. 2 per square yard which was grossly inadequate having regard to the locality; the character of the land; the building potentiality, the coming up of the various constructions and such other factors and more particularly when the High court itself found that the evidence of the President of the Municipality remained unchallenged and was not contested by the State. Thus taking the case at the lowest even if Rs. 15 per square yard is held to be the correct sale value of the land and deducting 1/3rd as the area was to fully developed, the minimum compensation that could be awarded to the appellant would be at the rate of Rs. 10 per square yard. This Court in the case of Tribeni Devi v. Collector of Ranchi has observed that where an area is not fully developed, a deduction of 1/3rd can be made. In this Connections this court observed as follows : (SCC p. 485 para 5)In order to develop that area at least the value of 1/3 of the land will have to be deducted for roads, drainage and other amenities. | 1 | 609 | 343 | ### Instruction:
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FAZAL ALI, J.1. This appeal by certificate is directed against a judgment of the Bombay High Court dated December 3, 1968 arising our of land acquisition proceedings taken under the erstwhile Hyderabad Land Acquisition Act. The admitted position, as found by the High Court, seems to be that the land in dispute is situated in the city of Jalna which is a developing town and in the neighborhood of the plot in dispute a grain market has already been built Several other municipal plots have also been sold out. Constructions like shops have come up. The land was acquired sometimes in the year 1954 and from the finding of the High Court it appears that the plots almost contiguous to the land in question have great building potentiality. A respectable witness like Mohanlal Deep Chand, who was the President of the Municipally had depose that the average sale value of such land would be Rs. 15 per square yard. In this connection the High Court observed as follows :2. Plot No. 26 which is behind plot No. 27 on the 70 feet road fetched the price at Rs. 15 per square yard. These sales have been deposed to by claimants witness No. 1 Mohanlal Deep Chand who was then the president of the Municipality. These sales have not in fact been challenged on behalf of the state. It is clear from these sales that the situation of these plots had played a very important role in the price obtained by them.3. The High Court pointed out that the evidence of Mohanlal Deep Chand had not been challenged on behalf of the State. In these circumstances therefore, this was a very reasonable and adequate basis for determining the compensation of the land in dispute. Again at another place the High Court has held that even if Rs. 15 per square yard was taken for a smaller plot in the locality as the locality was not properly developed, sufficient allowance should be given for reducing the amount of compensation. The High Court accordingly upheld the compensation awarded by the civil court 2 Rs. 2 per square yard. Having regard to the circumstances of this cases we find that there is absolutely no warrant for the High court for upholding the rate of Rs. 2 per square yard which was grossly inadequate having regard to the locality; the character of the land; the building potentiality, the coming up of the various constructions and such other factors and more particularly when the High court itself found that the evidence of the President of the Municipality remained unchallenged and was not contested by the State. Thus taking the case at the lowest even if Rs. 15 per square yard is held to be the correct sale value of the land and deducting 1/3rd as the area was to fully developed, the minimum compensation that could be awarded to the appellant would be at the rate of Rs. 10 per square yard. This Court in the case of Tribeni Devi v. Collector of Ranchi has observed that where an area is not fully developed, a deduction of 1/3rd can be made. In this Connections this court observed as follows : (SCC p. 485 para 5)In order to develop that area at least the value of 1/3 of the land will have to be deducted for roads, drainage and other amenities.
### Response:
1
### Explanation:
3. The High Court pointed out that the evidence of Mohanlal Deep Chand had not been challenged on behalf of the State. In these circumstances therefore, this was a very reasonable and adequate basis for determining the compensation of the land in dispute. Again at another place the High Court has held that even if Rs. 15 per square yard was taken for a smaller plot in the locality as the locality was not properly developed, sufficient allowance should be given for reducing the amount of compensation. The High Court accordingly upheld the compensation awarded by the civil court 2 Rs. 2 per square yard. Having regard to the circumstances of this cases we find that there is absolutely no warrant for the High court for upholding the rate of Rs. 2 per square yard which was grossly inadequate having regard to the locality; the character of the land; the building potentiality, the coming up of the various constructions and such other factors and more particularly when the High court itself found that the evidence of the President of the Municipality remained unchallenged and was not contested by the State. Thus taking the case at the lowest even if Rs. 15 per square yard is held to be the correct sale value of the land and deducting 1/3rd as the area was to fully developed, the minimum compensation that could be awarded to the appellant would be at the rate of Rs. 10 per square yard. This Court in the case of Tribeni Devi v. Collector of Ranchi has observed that where an area is not fully developed, a deduction of 1/3rd can be made. In this Connections this court observed as follows : (SCC p. 485 para 5)In order to develop that area at least the value of 1/3 of the land will have to be deducted for roads, drainage and other amenities.
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India General Navigation & Railway Company Limited & Others Vs. Their Workmen | where a workman is posted and as these workmen are not posted in Greater Calcutta they should not have been awarded this rate of dearness allowance.4. The tribunals reason for allowing this rate of dearness allowance to these clerks was that they were directly under the control of the head office and ought to be treated as belonging to the head office. The tribunal was further of the opinion that dearness allowance was a method to neutralise the high cost of living and as the members of the family of these workmen must be living in Calcutta they should get the same rate as other employees of the company living in Calcutta.5. So far as the principle is concerned there is no doubt that dearness allowance depends upon the place of posting of an employee. The difficulty, however, of applying this principle in the case of these clerks is that they have no definite place of posting; they are flat and steamer clerks and their main duty is to work on flats and steamers while they are plying on the river. In such a case the principle that dearness allowance should be governed by the place of posting can only mean that the employees should get dearness allowance where their families (i.e. wife and children) are residing, for that would be the place of posting of such employees for all practical purposes.The tribunals view therefore that these clerks should be paid this rate of dearness allowance would be justified on the presumption made by it that the families of these clerks must necessarily be living in Calcutta when they were on duty on a flat or steamer. There is, however, no proof of this on the record and it cannot necessarily be assumed that every such clerk must be keeping his family in Greater Calcutta. As we have pointed out above, this rate of dearness allowance is not meant to apply to those who reside outside Greater Calcutta. Though therefore the tribunal is right in awarding this rate of dearness allowance to these clerks, it went wrong in assuming that every one of these clerks was residing in Greater Calcutta.6. It is also urged that in view of the decision of the tribunal in 1954 by which the demand for a change in the earlier award of 1949 had been turned down, no reason has been shown for making the change from September 1957 and that the earlier award should be treated as res judicata. Our attention in this connection was drawn to Burn and Co., Calcutta v. Their Employees, 1956 SCR 781 : ( (S) AIR 1957 SC 38 ), where it was held that:"An award of an industrial tribunal is intended to have a long term of operation, and can be reopened under S. 19 (6) of the Industrial Disputes Act, No. 14 of 1947, only when there has been a material change in the circumstances on which it was based."Apart from the fact that Sec. 19 (6) of the Industrial Disputes Act itself contemplates that the award cannot be binding after it is terminated and therefore the principle of res judicata should be applied with caution in industrial disputes which relate to such matters as wages and dearness allowance, there can be no doubt that if circumstances have changed there is a good case for a change in the award. In the present case it is common knowledge that prices have risen in the country between 1954 and 1957 it cannot therefore be said that there has been no change in circumstances justifying a change in the dearness allowance from September 1957.7. We are therefore of opinion that the tribunals award should be modified to this extent that this rate of dearness allowance should only be allowed to such of these clerks who keep their families (i.e. wife and children) in Greater Calcutta. So far as the others are concerned, the existing rate will continue. We order accordinglyRe. (ii).8. As to the working hours on Saturdays in Ghat Offices the tribunal has upheld the award of 1949, though there is a slight mistake in the view it has taken about the working hours on Saturdays. According to the award, the working hours appear to be the same on all the days from Monday to Saturday: (see West Bengal Industrial Awards Quarter ending September 30, 1949, p. 416). But it is noted there that if the work permits the clerks are allowed to go away about 2 p.m. or 3 p.m. It was brought to the notice of the tribunal that there was an apprehension that the discretion to permit earlier departure on Saturdays might not be exercised in a liberal spirit. The tribunal therefore thought that a safeguard might be provided and it therefore directed that clerks detained after 3 p.m. on Saturdays would get half days wages in addition to their normal wages. The company has challenged this direction on the ground that there is an obvious inconsistency in the award inasmuch as the tribunal had earlier upheld the hours of work provided in the award of 1949. These hours of work are 10 a.m. to 6 p.m. with midday recess for one hour. In view of this inconsistency which is undoubtedly there and also in view of the fact that in the award of 1949 as printed in the booklet (supra) there is a misprint and total hours of work are shown as 30, we consider that hours of work should be fixed so that the position may no longer remain obscure. We therefore fix 10 a.m. to 6 p.m. with midday recess for one hour from Monday to Friday and 10 a.m. to 3 p.m. with no recess on Saturday. If any worker is detained beyond 3 p.m. for half an hour or more upto 6 p.m. he will be paid one-fourth days wages in addition to his normal wages. The other provisions of the 1949 award for working after 6 p.m. will stand. | 1[ds]The tribunal was further of the opinion that dearness allowance was a method to neutralise the high cost of living and as the members of the family of these workmen must be living in Calcutta they should get the same rate as other employees of the company living in Calcutta.So far as the principle is concerned there is no doubt that dearness allowance depends upon the place of posting of an employee. The difficulty, however, of applying this principle in the case of these clerks is that they have no definite place of posting; they are flat and steamer clerks and their main duty is to work on flats and steamers while they are plying on the river. In such a case the principle that dearness allowance should be governed by the place of posting can only mean that the employees should get dearness allowance where their families (i.e. wife and children) are residing, for that would be the place of posting of such employees for all practical purposes.The tribunals view therefore that these clerks should be paid this rate of dearness allowance would be justified on the presumption made by it that the families of these clerks must necessarily be living in Calcutta when they were on duty on a flat or steamer. There is, however, no proof of this on the record and it cannot necessarily be assumed that every such clerk must be keeping his family in Greater Calcutta. As we have pointed out above, this rate of dearness allowance is not meant to apply to those who reside outside Greater Calcutta. Though therefore the tribunal is right in awarding this rate of dearness allowance to these clerks, it went wrong in assuming that every one of these clerks was residing in Greaterfrom the fact that Sec. 19 (6) of the Industrial Disputes Act itself contemplates that the award cannot be binding after it is terminated and therefore the principle of res judicata should be applied with caution in industrial disputes which relate to such matters as wages and dearness allowance, there can be no doubt that if circumstances have changed there is a good case for a change in the award. In the present case it is common knowledge that prices have risen in the country between 1954 and 1957 it cannot therefore be said that there has been no change in circumstances justifying a change in the dearness allowance from September 1957.7. We are therefore of opinion that the tribunals award should be modified to this extent that this rate of dearness allowance should only be allowed to such of these clerks who keep their families (i.e. wife and children) in Greater Calcutta. So far as the others are concerned, the existing rate will continue. We orderAs to the working hours on Saturdays in Ghat Offices the tribunal has upheld the award of 1949, though there is a slight mistake in the view it has taken about the working hours on Saturdays. According to the award, the working hours appear to be the same on all the days from Monday to Saturday: (see West Bengal Industrial Awards Quarter ending September 30, 1949, p. 416). But it is noted there that if the work permits the clerks are allowed to go away about 2 p.m. or 3 p.m. It was brought to the notice of the tribunal that there was an apprehension that the discretion to permit earlier departure on Saturdays might not be exercised in a liberal spirit. The tribunal therefore thought that a safeguard might be provided and it therefore directed that clerks detained after 3 p.m. on Saturdays would get half days wages in addition to their normal wages. The company has challenged this direction on the ground that there is an obvious inconsistency in the award inasmuch as the tribunal had earlier upheld the hours of work provided in the award of 1949. These hours of work are 10 a.m. to 6 p.m. with midday recess for one hour. In view of this inconsistency which is undoubtedly there and also in view of the fact that in the award of 1949 as printed in the booklet (supra) there is a misprint and total hours of work are shown as 30, we consider that hours of work should be fixed so that the position may no longer remain obscure. We therefore fix 10 a.m. to 6 p.m. with midday recess for one hour from Monday to Friday and 10 a.m. to 3 p.m. with no recess on Saturday. If any worker is detained beyond 3 p.m. for half an hour or more upto 6 p.m. he will be paiddays wages in addition to his normal wages. The other provisions of the 1949 award for working after 6 p.m. will stand. | 1 | 1,455 | 853 | ### Instruction:
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where a workman is posted and as these workmen are not posted in Greater Calcutta they should not have been awarded this rate of dearness allowance.4. The tribunals reason for allowing this rate of dearness allowance to these clerks was that they were directly under the control of the head office and ought to be treated as belonging to the head office. The tribunal was further of the opinion that dearness allowance was a method to neutralise the high cost of living and as the members of the family of these workmen must be living in Calcutta they should get the same rate as other employees of the company living in Calcutta.5. So far as the principle is concerned there is no doubt that dearness allowance depends upon the place of posting of an employee. The difficulty, however, of applying this principle in the case of these clerks is that they have no definite place of posting; they are flat and steamer clerks and their main duty is to work on flats and steamers while they are plying on the river. In such a case the principle that dearness allowance should be governed by the place of posting can only mean that the employees should get dearness allowance where their families (i.e. wife and children) are residing, for that would be the place of posting of such employees for all practical purposes.The tribunals view therefore that these clerks should be paid this rate of dearness allowance would be justified on the presumption made by it that the families of these clerks must necessarily be living in Calcutta when they were on duty on a flat or steamer. There is, however, no proof of this on the record and it cannot necessarily be assumed that every such clerk must be keeping his family in Greater Calcutta. As we have pointed out above, this rate of dearness allowance is not meant to apply to those who reside outside Greater Calcutta. Though therefore the tribunal is right in awarding this rate of dearness allowance to these clerks, it went wrong in assuming that every one of these clerks was residing in Greater Calcutta.6. It is also urged that in view of the decision of the tribunal in 1954 by which the demand for a change in the earlier award of 1949 had been turned down, no reason has been shown for making the change from September 1957 and that the earlier award should be treated as res judicata. Our attention in this connection was drawn to Burn and Co., Calcutta v. Their Employees, 1956 SCR 781 : ( (S) AIR 1957 SC 38 ), where it was held that:"An award of an industrial tribunal is intended to have a long term of operation, and can be reopened under S. 19 (6) of the Industrial Disputes Act, No. 14 of 1947, only when there has been a material change in the circumstances on which it was based."Apart from the fact that Sec. 19 (6) of the Industrial Disputes Act itself contemplates that the award cannot be binding after it is terminated and therefore the principle of res judicata should be applied with caution in industrial disputes which relate to such matters as wages and dearness allowance, there can be no doubt that if circumstances have changed there is a good case for a change in the award. In the present case it is common knowledge that prices have risen in the country between 1954 and 1957 it cannot therefore be said that there has been no change in circumstances justifying a change in the dearness allowance from September 1957.7. We are therefore of opinion that the tribunals award should be modified to this extent that this rate of dearness allowance should only be allowed to such of these clerks who keep their families (i.e. wife and children) in Greater Calcutta. So far as the others are concerned, the existing rate will continue. We order accordinglyRe. (ii).8. As to the working hours on Saturdays in Ghat Offices the tribunal has upheld the award of 1949, though there is a slight mistake in the view it has taken about the working hours on Saturdays. According to the award, the working hours appear to be the same on all the days from Monday to Saturday: (see West Bengal Industrial Awards Quarter ending September 30, 1949, p. 416). But it is noted there that if the work permits the clerks are allowed to go away about 2 p.m. or 3 p.m. It was brought to the notice of the tribunal that there was an apprehension that the discretion to permit earlier departure on Saturdays might not be exercised in a liberal spirit. The tribunal therefore thought that a safeguard might be provided and it therefore directed that clerks detained after 3 p.m. on Saturdays would get half days wages in addition to their normal wages. The company has challenged this direction on the ground that there is an obvious inconsistency in the award inasmuch as the tribunal had earlier upheld the hours of work provided in the award of 1949. These hours of work are 10 a.m. to 6 p.m. with midday recess for one hour. In view of this inconsistency which is undoubtedly there and also in view of the fact that in the award of 1949 as printed in the booklet (supra) there is a misprint and total hours of work are shown as 30, we consider that hours of work should be fixed so that the position may no longer remain obscure. We therefore fix 10 a.m. to 6 p.m. with midday recess for one hour from Monday to Friday and 10 a.m. to 3 p.m. with no recess on Saturday. If any worker is detained beyond 3 p.m. for half an hour or more upto 6 p.m. he will be paid one-fourth days wages in addition to his normal wages. The other provisions of the 1949 award for working after 6 p.m. will stand.
### Response:
1
### Explanation:
The tribunal was further of the opinion that dearness allowance was a method to neutralise the high cost of living and as the members of the family of these workmen must be living in Calcutta they should get the same rate as other employees of the company living in Calcutta.So far as the principle is concerned there is no doubt that dearness allowance depends upon the place of posting of an employee. The difficulty, however, of applying this principle in the case of these clerks is that they have no definite place of posting; they are flat and steamer clerks and their main duty is to work on flats and steamers while they are plying on the river. In such a case the principle that dearness allowance should be governed by the place of posting can only mean that the employees should get dearness allowance where their families (i.e. wife and children) are residing, for that would be the place of posting of such employees for all practical purposes.The tribunals view therefore that these clerks should be paid this rate of dearness allowance would be justified on the presumption made by it that the families of these clerks must necessarily be living in Calcutta when they were on duty on a flat or steamer. There is, however, no proof of this on the record and it cannot necessarily be assumed that every such clerk must be keeping his family in Greater Calcutta. As we have pointed out above, this rate of dearness allowance is not meant to apply to those who reside outside Greater Calcutta. Though therefore the tribunal is right in awarding this rate of dearness allowance to these clerks, it went wrong in assuming that every one of these clerks was residing in Greaterfrom the fact that Sec. 19 (6) of the Industrial Disputes Act itself contemplates that the award cannot be binding after it is terminated and therefore the principle of res judicata should be applied with caution in industrial disputes which relate to such matters as wages and dearness allowance, there can be no doubt that if circumstances have changed there is a good case for a change in the award. In the present case it is common knowledge that prices have risen in the country between 1954 and 1957 it cannot therefore be said that there has been no change in circumstances justifying a change in the dearness allowance from September 1957.7. We are therefore of opinion that the tribunals award should be modified to this extent that this rate of dearness allowance should only be allowed to such of these clerks who keep their families (i.e. wife and children) in Greater Calcutta. So far as the others are concerned, the existing rate will continue. We orderAs to the working hours on Saturdays in Ghat Offices the tribunal has upheld the award of 1949, though there is a slight mistake in the view it has taken about the working hours on Saturdays. According to the award, the working hours appear to be the same on all the days from Monday to Saturday: (see West Bengal Industrial Awards Quarter ending September 30, 1949, p. 416). But it is noted there that if the work permits the clerks are allowed to go away about 2 p.m. or 3 p.m. It was brought to the notice of the tribunal that there was an apprehension that the discretion to permit earlier departure on Saturdays might not be exercised in a liberal spirit. The tribunal therefore thought that a safeguard might be provided and it therefore directed that clerks detained after 3 p.m. on Saturdays would get half days wages in addition to their normal wages. The company has challenged this direction on the ground that there is an obvious inconsistency in the award inasmuch as the tribunal had earlier upheld the hours of work provided in the award of 1949. These hours of work are 10 a.m. to 6 p.m. with midday recess for one hour. In view of this inconsistency which is undoubtedly there and also in view of the fact that in the award of 1949 as printed in the booklet (supra) there is a misprint and total hours of work are shown as 30, we consider that hours of work should be fixed so that the position may no longer remain obscure. We therefore fix 10 a.m. to 6 p.m. with midday recess for one hour from Monday to Friday and 10 a.m. to 3 p.m. with no recess on Saturday. If any worker is detained beyond 3 p.m. for half an hour or more upto 6 p.m. he will be paiddays wages in addition to his normal wages. The other provisions of the 1949 award for working after 6 p.m. will stand.
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State Of Mysore Vs. Abdul Razak Sahib | Hegde, J. 1. This appeal arises from certain land acquisition proceedings. The Government of Mysore notified the lands belonging to the respondent for acquisition. The notification under S. 4 of the Land Acquisition Act, 1894, was published in the official gazette on August 17, 1961, but no notices as required by that section were published in the locality till November 1 and 9, 1961. The respondent filed his objections only on December 4, 1961. The question for consideration is whether the notification issued under Section 4 is a valid notification. The respondent challenged the validity of the notification before the High Court of Mysore by means of a writ petition under Article 226 of the Constitution. The High Court came to the conclusion that the impugned notification was invalid and consequently quashed the same. As against that decision this appeal has been brought after obtaining certificate under Art. 133 (1) (b) of the Constitution. 2. We shall now read S. 4 (1) of the Land Acquisition Act, 1894. It says:"4. (1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose, a notification to that effect shall be published in the Official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality." The section prescribes two requirements, namely, (1) a notification to be published in the Official Gazette, and (2) the Collector causing to give public notice of the substance of that notification at convenient places in the concerned locality. 3. Now, we may turn to S. 5A (1) of the Act which says:"5A. (1) Any person interested in any land which has been notified under Section 4, sub-section (1), as being needed or likely to be needed for a public purpose or for a Company may, within thirty days after the issue of the notification, object to the acquisition of the land or of any land in the locality, as the case may be." Section 5A empowers the interested person to object to the acquisition of any land but his objection should be filed within thirty days from the date of the issue of the notification. Any objection filed thereafter need not be considered as the same is filed after the time stipulated in S. 5A (1). 4. With the above background we have to consider the scope of Section 4 (1).Under certain circumstances publications in the Official Gazettes are presumed to be notice to all concerned. But in the case of a notification under S. 4 of the Land Acquisition Act the law has prescribed that in addition to the publication of the notification in the Official Gazette the Collector must also give publicity of the substance of the notification in the concerned locality. Unless both these conditions are satisfied, S. 4 of the Land Acquisition Act cannot be said to have been complied. The publication of the notice in the locality is a mandatory requirement. It has an important purpose behind it. In the absence of such publication the interested persons may not be able to file their objections about the acquisition proceedings and they will be deprival of the right of representation provided under S. 5A, which is very valuable right. 5. This very question came up for consideration before the High Court of Mysore in Gangadharaiah v. State of Mysore, (1961) 39 Mys LJ 883 and the High Court ruled that S. 4 (1) requires that there should both be a notification in the gazette as also a public notice in the locality in which the property proposed to be acquired is situate. It is only when the notification is published in the Official Gazette and it is accompanied by or immediately followed by the public notice, that a person interested in the property proposed to be acquired can be regarded to have had notice of the proposed acquisition. We are entirely in agreement with the rule laid down by that decision. 6. The impugned notification has not complied with the requirement of the law. Hence the High Court was justified in quashing the proceedings taken. 7. In the view that we have taken, it is not necessary for us to consider either the applicability or the scope of the Mysore Act 17 of 1961 to the present proceedings. | 0[ds]4. With the above background we have to consider the scope of Section 4 (1).Under certain circumstances publications in the Official Gazettes are presumed to be notice to all concerned. But in the case of a notification under S. 4 of the Land Acquisition Act the law has prescribed that in addition to the publication of the notification in the Official Gazette the Collector must also give publicity of the substance of the notification in the concerned locality. Unless both these conditions are satisfied, S. 4 of the Land Acquisition Act cannot be said to have been complied. The publication of the notice in the locality is a mandatory requirement. It has an important purpose behind it. In the absence of such publication the interested persons may not be able to file their objections about the acquisition proceedings and they will be deprival of the right of representation provided under S. 5A, which is very valuable right5. This very question came up for consideration before the High Court of Mysore in Gangadharaiah v. State of Mysore, (1961) 39 Mys LJ 883 and the High Court ruled that S. 4 (1) requires that there should both be a notification in the gazette as also a public notice in the locality in which the property proposed to be acquired is situate. It is only when the notification is published in the Official Gazette and it is accompanied by or immediately followed by the public notice, that a person interested in the property proposed to be acquired can be regarded to have had notice of the proposed acquisition. We are entirely in agreement with the rule laid down by that decision6. The impugned notification has not complied with the requirement of the law. Hence the High Court was justified in quashing the proceedings taken7. In the view that we have taken, it is not necessary for us to consider either the applicability or the scope of the Mysore Act 17 of 1961 to the present proceedings. | 0 | 829 | 363 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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Hegde, J. 1. This appeal arises from certain land acquisition proceedings. The Government of Mysore notified the lands belonging to the respondent for acquisition. The notification under S. 4 of the Land Acquisition Act, 1894, was published in the official gazette on August 17, 1961, but no notices as required by that section were published in the locality till November 1 and 9, 1961. The respondent filed his objections only on December 4, 1961. The question for consideration is whether the notification issued under Section 4 is a valid notification. The respondent challenged the validity of the notification before the High Court of Mysore by means of a writ petition under Article 226 of the Constitution. The High Court came to the conclusion that the impugned notification was invalid and consequently quashed the same. As against that decision this appeal has been brought after obtaining certificate under Art. 133 (1) (b) of the Constitution. 2. We shall now read S. 4 (1) of the Land Acquisition Act, 1894. It says:"4. (1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose, a notification to that effect shall be published in the Official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality." The section prescribes two requirements, namely, (1) a notification to be published in the Official Gazette, and (2) the Collector causing to give public notice of the substance of that notification at convenient places in the concerned locality. 3. Now, we may turn to S. 5A (1) of the Act which says:"5A. (1) Any person interested in any land which has been notified under Section 4, sub-section (1), as being needed or likely to be needed for a public purpose or for a Company may, within thirty days after the issue of the notification, object to the acquisition of the land or of any land in the locality, as the case may be." Section 5A empowers the interested person to object to the acquisition of any land but his objection should be filed within thirty days from the date of the issue of the notification. Any objection filed thereafter need not be considered as the same is filed after the time stipulated in S. 5A (1). 4. With the above background we have to consider the scope of Section 4 (1).Under certain circumstances publications in the Official Gazettes are presumed to be notice to all concerned. But in the case of a notification under S. 4 of the Land Acquisition Act the law has prescribed that in addition to the publication of the notification in the Official Gazette the Collector must also give publicity of the substance of the notification in the concerned locality. Unless both these conditions are satisfied, S. 4 of the Land Acquisition Act cannot be said to have been complied. The publication of the notice in the locality is a mandatory requirement. It has an important purpose behind it. In the absence of such publication the interested persons may not be able to file their objections about the acquisition proceedings and they will be deprival of the right of representation provided under S. 5A, which is very valuable right. 5. This very question came up for consideration before the High Court of Mysore in Gangadharaiah v. State of Mysore, (1961) 39 Mys LJ 883 and the High Court ruled that S. 4 (1) requires that there should both be a notification in the gazette as also a public notice in the locality in which the property proposed to be acquired is situate. It is only when the notification is published in the Official Gazette and it is accompanied by or immediately followed by the public notice, that a person interested in the property proposed to be acquired can be regarded to have had notice of the proposed acquisition. We are entirely in agreement with the rule laid down by that decision. 6. The impugned notification has not complied with the requirement of the law. Hence the High Court was justified in quashing the proceedings taken. 7. In the view that we have taken, it is not necessary for us to consider either the applicability or the scope of the Mysore Act 17 of 1961 to the present proceedings.
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4. With the above background we have to consider the scope of Section 4 (1).Under certain circumstances publications in the Official Gazettes are presumed to be notice to all concerned. But in the case of a notification under S. 4 of the Land Acquisition Act the law has prescribed that in addition to the publication of the notification in the Official Gazette the Collector must also give publicity of the substance of the notification in the concerned locality. Unless both these conditions are satisfied, S. 4 of the Land Acquisition Act cannot be said to have been complied. The publication of the notice in the locality is a mandatory requirement. It has an important purpose behind it. In the absence of such publication the interested persons may not be able to file their objections about the acquisition proceedings and they will be deprival of the right of representation provided under S. 5A, which is very valuable right5. This very question came up for consideration before the High Court of Mysore in Gangadharaiah v. State of Mysore, (1961) 39 Mys LJ 883 and the High Court ruled that S. 4 (1) requires that there should both be a notification in the gazette as also a public notice in the locality in which the property proposed to be acquired is situate. It is only when the notification is published in the Official Gazette and it is accompanied by or immediately followed by the public notice, that a person interested in the property proposed to be acquired can be regarded to have had notice of the proposed acquisition. We are entirely in agreement with the rule laid down by that decision6. The impugned notification has not complied with the requirement of the law. Hence the High Court was justified in quashing the proceedings taken7. In the view that we have taken, it is not necessary for us to consider either the applicability or the scope of the Mysore Act 17 of 1961 to the present proceedings.
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Patel Field Marshal Agencies & Another Vs. P.M. Diesels Ltd. & Others | statue. None exists in the 1958 Act to understand the provisions of Section 111(3) in any other manner except that the right to raise the issue of invalidity is lost forever if the requisite action to move the High Court/IPAB (now) is not initiated within the statutorily prescribed time frame.32. Thus, by virtue of the operation of the 1958 Act, the plea of rectification, upon abandonment, must be understood to have ceased to exist or survive between the parties inter se. Any other view would be to permit a party to collaterally raise the issue of rectification at any stage notwithstanding that a final decree may have been passed by the civil court in the meantime. True, the decree of the Civil Court will be on the basis of the conclusions on the other issues in the suit. But to permit the issue of rectification, once abandoned, to be resurrected at the option of the party who had chosen not to pursue the same at an earlier point of time would be to open the doors to reopening of decrees/orders that have attained finality in law. This will bring in uncertainty if not chaos in the judicial determinations between the parties that stand concluded. Besides, such an interpretation would permit an aggrieved party to get over the operation of a statute providing for deemed abandonment of the right to raise an issue relevant; in fact, fundamental to the lis. The position may be highlighted by reference to a suit for infringement where the defendant raises the plea of invalidity of the plaintiffs trade mark and also in the alternative takes up any of the defenses available in law. The defendant by operation of Section 111(3) of the 1958 Act is deemed to have abandoned the plea of invalidity. In the trial it is found that the defendant is guilty of infringement and is appropriately restrained by a decree of the Civil Court. If the right under Section 46/56 of the 1958 Act is to subsist even in such a situation, the possible uncertainty and possible anarchy may well be visualized. This is why the legislature by enacting Section 111 of the 1958 Act has mandated that the issue of invalidity which would go to the root of the matter should be decided in the first instance and a decision on the same would bind the parties before the civil court. Only if the same is abandoned or decided against the party raising it that the suit will proceed in respect of the other issues, if any. If the above is the legislative intent, which seems to be clear, we do not see how the same can be overcome by reading the rights under Sections 46 and 56 of the 1958 Act to exist even in a situation where the abandonment of the same right under Section 111(3) has taken effect in law. The mandate of the 1958 Act, particularly, Section 111 thereof, appears to be that if an aggrieved party does not approach the Tribunal for a decision on the issue of invalidity of registration as provided for under Section 111(2) and (3), the right to raise the issue (of invalidity) would no longer survive between the parties to enable the concerned party to seek enforcement of the same by recourse to or by a separate action under the provisions of Section 46/56 of the 1958 Act.33. Having dealt with the matter in the above manner, certain subsidiary and incidental questions, urged and argued by the parties, would also need an answer.34. The first question posed is how an approach to the superior Court i.e. the High Court, under Section 111 of the 1958 Act, can be contingent on a permission or grant of leave by a court of subordinate jurisdiction. The above is also contended to be plainly contrary to the provisions of Section 41 (b) of Specific Relief Act, 1963. It is also urged that Section 32 of the 1958 Act provides a defence to a claim of infringement which is open to be taken both in a proceeding for rectification as well as in a suit. The said defence statutorily available to a contesting party cannot be foreclosed by a deemed abandonment of the issue of invalidity, it has been contended.35. Section 111 of the 1958 Act and the corresponding Section 124 of the 1999 Act nowhere contemplates grant of permission by the civil court to move the High Court or the IPAB, as may be, for rectification. The true purport and effect of Sections 111/124 (of the old and new Act) has been dealt within detail and would not require any further discussion or enumeration. The requirement of satisfaction of the civil Court regarding the existence of a prima facie case of invalidity and the framing of an issue to that effect before the law operates to vest jurisdiction in the statutory authority to deal with the issue of invalidity by no means, tantamount to permission or leave of the civil court, as has been contended. It is a basic requirement to further the cause of justice by elimination of false, frivolous and untenable claims of invalidity that may be raised in the suit.36. While Section 32 of the 1958 Act, undoubtedly, provides a defence with regard to the finality of a registration by efflux of time, we do not see how the provisions of aforesaid section can be construed to understand that the proceedings under Sections 46 and 56 on the one hand and those under Sections 107 and 111 on the other of the 1958 Act and the pari materia provisions of the 1999 Act would run parallelly. As already held by us, the jurisdiction of rectification conferred by Sections 46 and 56 of the 1958 Act is the very same jurisdiction that is to be exercised under Sections 107 and 111 of the 1958 Act when the issue of invalidity is raised in the suit but by observance of two different procedural regimes. | 0[ds]The question does not seem to have received/engaged the attention of this Court at any earlier point of time and therefore will have to be answered by us.Rather, from the resume of the provisions of the 1958 Act made above it becomes clear that all questions with regard to the validity of a Trade Mark is required to be decided by the Registrar or the High Court under the 1958 Act or by the Registrar or the IPAB under the 1999 Act and not by the Civil Court. The Civil Court, infact, is not empowered by the Act to decide the said question. Furthermore, the Act mandates that the decisions rendered by the prescribed statutory authority [Registrar/High Court (now IPAB)] will bind the Civil Court. At the same time, the Act (both old and new) goes on to provide a different procedure to govern the exercise of the same jurisdiction in two different situations. In a case where the issue of invalidity is raised or arises independent of a suit, the prescribed statutory authority will be the sole authority to deal with the matter. However, in a situation where a suit is pending (whether instituted before or after the filing of a rectification application) the exercise of jurisdiction by the prescribed statutory authority is contingent on a finding of the Civil Court as regards the prima facie tenability of the plea of invalidity.The 1958 Act clearly visualizes that though in both situations i.e. where no suit for infringement is pending at the time of filing of the application for rectification or such a suit has came to be instituted subsequent to the application for rectification, it is the Registrar or the High Court which constitutes the Tribunal to determine the question of invalidity, the procedure contemplated by the Statute to govern the exercise of jurisdiction to rectify is, however, different in the two situations enumerated. Such difference has already been noted.30. The intention of the legislature is clear. All issues relating to and connected with the validity of registration has to be dealt with by the Tribunal and not by the civil court. In cases where the parties have not approached the civil court, Sections 46 and 56 provide an independent statutory right to an aggrieved party to seek rectification of a trade mark. However, in the event the Civil Court is approached, inter alia, raising the issue of invalidity of the trade mark such plea will be decided not by the civil court but by the Tribunal under the 1958 Act. The Tribunal will however come into seisin of the matter only if the Civil Court is satisfied that an issue with regard to invalidity ought to be framed in the suit. Once an issue to the said effect is framed, the matter will have to go to the Tribunal and the decision of the Tribunal will thereafter bind the Civil Court. If despite the order of the civil court the parties do not approach the Tribunal for rectification, the plea with regard to rectification will no longer survive.31. The legislature while providing consequences forwith timelines for doing of any act must be understood to have intended such consequences to be mandatory in nature, thereby, also affecting the substantive rights of the parties. This is how Section 111(3) of the 1958 Act has to be understood. That apart, it is very much within the legislative domain to create legal fictions by incorporating a deeming clause and the court will have to understand such statutory fictions as bringing about a real state of affairs between the parties and ushering in legal consequences affecting the parties unless, of course, there is any other contrary provision in the statue. None exists in the 1958 Act to understand the provisions of Section 111(3) in any other manner except that the right to raise the issue of invalidity is lost forever if the requisite action to move the High Court/IPAB (now) is not initiated within the statutorily prescribed time frame.32. Thus, by virtue of the operation of the 1958 Act, the plea of rectification, upon abandonment, must be understood to have ceased to exist or survive between the parties inter se. Any other view would be to permit a party to collaterally raise the issue of rectification at any stage notwithstanding that a final decree may have been passed by the civil court in the meantime. True, the decree of the Civil Court will be on the basis of the conclusions on the other issues in the suit. But to permit the issue of rectification, once abandoned, to be resurrected at the option of the party who had chosen not to pursue the same at an earlier point of time would be to open the doors to reopening of decrees/orders that have attained finality in law. This will bring in uncertainty if not chaos in the judicial determinations between the parties that stand concluded. Besides, such an interpretation would permit an aggrieved party to get over the operation of a statute providing for deemed abandonment of the right to raise an issue relevant; in fact, fundamental to the lis. The position may be highlighted by reference to a suit for infringement where the defendant raises the plea of invalidity of the plaintiffs trade mark and also in the alternative takes up any of the defenses available in law. The defendant by operation of Section 111(3) of the 1958 Act is deemed to have abandoned the plea of invalidity. In the trial it is found that the defendant is guilty of infringement and is appropriately restrained by a decree of the Civil Court. If the right under Section 46/56 of the 1958 Act is to subsist even in such a situation, the possible uncertainty and possible anarchy may well be visualized. This is why the legislature by enacting Section 111 of the 1958 Act has mandated that the issue of invalidity which would go to the root of the matter should be decided in the first instance and a decision on the same would bind the parties before the civil court. Only if the same is abandoned or decided against the party raising it that the suit will proceed in respect of the other issues, if any. If the above is the legislative intent, which seems to be clear, we do not see how the same can be overcome by reading the rights under Sections 46 and 56 of the 1958 Act to exist even in a situation where the abandonment of the same right under Section 111(3) has taken effect in law. The mandate of the 1958 Act, particularly, Section 111 thereof, appears to be that if an aggrieved party does not approach the Tribunal for a decision on the issue of invalidity of registration as provided for under Section 111(2) and (3), the right to raise the issue (of invalidity) would no longer survive between the parties to enable the concerned party to seek enforcement of the same by recourse to or by a separate action under the provisions of Section 46/56 of the 1958 Act.33. Having dealt with the matter in the above manner, certain subsidiary and incidental questions, urged and argued by the parties, would also need an answer.Section 111 of the 1958 Act and the corresponding Section 124 of the 1999 Act nowhere contemplates grant of permission by the civil court to move the High Court or the IPAB, as may be, for rectification. The true purport and effect of Sections 111/124 (of the old and new Act) has been dealt within detail and would not require any further discussion or enumeration. The requirement of satisfaction of the civil Court regarding the existence of a prima facie case of invalidity and the framing of an issue to that effect before the law operates to vest jurisdiction in the statutory authority to deal with the issue of invalidity by no means, tantamount to permission or leave of the civil court, as has been contended. It is a basic requirement to further the cause of justice by elimination of false, frivolous and untenable claims of invalidity that may be raised in the suit.36. While Section 32 of the 1958 Act, undoubtedly, provides a defence with regard to the finality of a registration by efflux of time, we do not see how the provisions of aforesaid section can be construed to understand that the proceedings under Sections 46 and 56 on the one hand and those under Sections 107 and 111 on the other of the 1958 Act and the pari materia provisions of the 1999 Act would run parallelly. As already held by us, the jurisdiction of rectification conferred by Sections 46 and 56 of the 1958 Act is the very same jurisdiction that is to be exercised under Sections 107 and 111 of the 1958 Act when the issue of invalidity is raised in the suit but by observance of two different procedural regimes. | 0 | 8,277 | 1,619 | ### 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:
statue. None exists in the 1958 Act to understand the provisions of Section 111(3) in any other manner except that the right to raise the issue of invalidity is lost forever if the requisite action to move the High Court/IPAB (now) is not initiated within the statutorily prescribed time frame.32. Thus, by virtue of the operation of the 1958 Act, the plea of rectification, upon abandonment, must be understood to have ceased to exist or survive between the parties inter se. Any other view would be to permit a party to collaterally raise the issue of rectification at any stage notwithstanding that a final decree may have been passed by the civil court in the meantime. True, the decree of the Civil Court will be on the basis of the conclusions on the other issues in the suit. But to permit the issue of rectification, once abandoned, to be resurrected at the option of the party who had chosen not to pursue the same at an earlier point of time would be to open the doors to reopening of decrees/orders that have attained finality in law. This will bring in uncertainty if not chaos in the judicial determinations between the parties that stand concluded. Besides, such an interpretation would permit an aggrieved party to get over the operation of a statute providing for deemed abandonment of the right to raise an issue relevant; in fact, fundamental to the lis. The position may be highlighted by reference to a suit for infringement where the defendant raises the plea of invalidity of the plaintiffs trade mark and also in the alternative takes up any of the defenses available in law. The defendant by operation of Section 111(3) of the 1958 Act is deemed to have abandoned the plea of invalidity. In the trial it is found that the defendant is guilty of infringement and is appropriately restrained by a decree of the Civil Court. If the right under Section 46/56 of the 1958 Act is to subsist even in such a situation, the possible uncertainty and possible anarchy may well be visualized. This is why the legislature by enacting Section 111 of the 1958 Act has mandated that the issue of invalidity which would go to the root of the matter should be decided in the first instance and a decision on the same would bind the parties before the civil court. Only if the same is abandoned or decided against the party raising it that the suit will proceed in respect of the other issues, if any. If the above is the legislative intent, which seems to be clear, we do not see how the same can be overcome by reading the rights under Sections 46 and 56 of the 1958 Act to exist even in a situation where the abandonment of the same right under Section 111(3) has taken effect in law. The mandate of the 1958 Act, particularly, Section 111 thereof, appears to be that if an aggrieved party does not approach the Tribunal for a decision on the issue of invalidity of registration as provided for under Section 111(2) and (3), the right to raise the issue (of invalidity) would no longer survive between the parties to enable the concerned party to seek enforcement of the same by recourse to or by a separate action under the provisions of Section 46/56 of the 1958 Act.33. Having dealt with the matter in the above manner, certain subsidiary and incidental questions, urged and argued by the parties, would also need an answer.34. The first question posed is how an approach to the superior Court i.e. the High Court, under Section 111 of the 1958 Act, can be contingent on a permission or grant of leave by a court of subordinate jurisdiction. The above is also contended to be plainly contrary to the provisions of Section 41 (b) of Specific Relief Act, 1963. It is also urged that Section 32 of the 1958 Act provides a defence to a claim of infringement which is open to be taken both in a proceeding for rectification as well as in a suit. The said defence statutorily available to a contesting party cannot be foreclosed by a deemed abandonment of the issue of invalidity, it has been contended.35. Section 111 of the 1958 Act and the corresponding Section 124 of the 1999 Act nowhere contemplates grant of permission by the civil court to move the High Court or the IPAB, as may be, for rectification. The true purport and effect of Sections 111/124 (of the old and new Act) has been dealt within detail and would not require any further discussion or enumeration. The requirement of satisfaction of the civil Court regarding the existence of a prima facie case of invalidity and the framing of an issue to that effect before the law operates to vest jurisdiction in the statutory authority to deal with the issue of invalidity by no means, tantamount to permission or leave of the civil court, as has been contended. It is a basic requirement to further the cause of justice by elimination of false, frivolous and untenable claims of invalidity that may be raised in the suit.36. While Section 32 of the 1958 Act, undoubtedly, provides a defence with regard to the finality of a registration by efflux of time, we do not see how the provisions of aforesaid section can be construed to understand that the proceedings under Sections 46 and 56 on the one hand and those under Sections 107 and 111 on the other of the 1958 Act and the pari materia provisions of the 1999 Act would run parallelly. As already held by us, the jurisdiction of rectification conferred by Sections 46 and 56 of the 1958 Act is the very same jurisdiction that is to be exercised under Sections 107 and 111 of the 1958 Act when the issue of invalidity is raised in the suit but by observance of two different procedural regimes.
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do not approach the Tribunal for rectification, the plea with regard to rectification will no longer survive.31. The legislature while providing consequences forwith timelines for doing of any act must be understood to have intended such consequences to be mandatory in nature, thereby, also affecting the substantive rights of the parties. This is how Section 111(3) of the 1958 Act has to be understood. That apart, it is very much within the legislative domain to create legal fictions by incorporating a deeming clause and the court will have to understand such statutory fictions as bringing about a real state of affairs between the parties and ushering in legal consequences affecting the parties unless, of course, there is any other contrary provision in the statue. None exists in the 1958 Act to understand the provisions of Section 111(3) in any other manner except that the right to raise the issue of invalidity is lost forever if the requisite action to move the High Court/IPAB (now) is not initiated within the statutorily prescribed time frame.32. Thus, by virtue of the operation of the 1958 Act, the plea of rectification, upon abandonment, must be understood to have ceased to exist or survive between the parties inter se. Any other view would be to permit a party to collaterally raise the issue of rectification at any stage notwithstanding that a final decree may have been passed by the civil court in the meantime. True, the decree of the Civil Court will be on the basis of the conclusions on the other issues in the suit. But to permit the issue of rectification, once abandoned, to be resurrected at the option of the party who had chosen not to pursue the same at an earlier point of time would be to open the doors to reopening of decrees/orders that have attained finality in law. This will bring in uncertainty if not chaos in the judicial determinations between the parties that stand concluded. Besides, such an interpretation would permit an aggrieved party to get over the operation of a statute providing for deemed abandonment of the right to raise an issue relevant; in fact, fundamental to the lis. The position may be highlighted by reference to a suit for infringement where the defendant raises the plea of invalidity of the plaintiffs trade mark and also in the alternative takes up any of the defenses available in law. The defendant by operation of Section 111(3) of the 1958 Act is deemed to have abandoned the plea of invalidity. In the trial it is found that the defendant is guilty of infringement and is appropriately restrained by a decree of the Civil Court. If the right under Section 46/56 of the 1958 Act is to subsist even in such a situation, the possible uncertainty and possible anarchy may well be visualized. This is why the legislature by enacting Section 111 of the 1958 Act has mandated that the issue of invalidity which would go to the root of the matter should be decided in the first instance and a decision on the same would bind the parties before the civil court. Only if the same is abandoned or decided against the party raising it that the suit will proceed in respect of the other issues, if any. If the above is the legislative intent, which seems to be clear, we do not see how the same can be overcome by reading the rights under Sections 46 and 56 of the 1958 Act to exist even in a situation where the abandonment of the same right under Section 111(3) has taken effect in law. The mandate of the 1958 Act, particularly, Section 111 thereof, appears to be that if an aggrieved party does not approach the Tribunal for a decision on the issue of invalidity of registration as provided for under Section 111(2) and (3), the right to raise the issue (of invalidity) would no longer survive between the parties to enable the concerned party to seek enforcement of the same by recourse to or by a separate action under the provisions of Section 46/56 of the 1958 Act.33. Having dealt with the matter in the above manner, certain subsidiary and incidental questions, urged and argued by the parties, would also need an answer.Section 111 of the 1958 Act and the corresponding Section 124 of the 1999 Act nowhere contemplates grant of permission by the civil court to move the High Court or the IPAB, as may be, for rectification. The true purport and effect of Sections 111/124 (of the old and new Act) has been dealt within detail and would not require any further discussion or enumeration. The requirement of satisfaction of the civil Court regarding the existence of a prima facie case of invalidity and the framing of an issue to that effect before the law operates to vest jurisdiction in the statutory authority to deal with the issue of invalidity by no means, tantamount to permission or leave of the civil court, as has been contended. It is a basic requirement to further the cause of justice by elimination of false, frivolous and untenable claims of invalidity that may be raised in the suit.36. While Section 32 of the 1958 Act, undoubtedly, provides a defence with regard to the finality of a registration by efflux of time, we do not see how the provisions of aforesaid section can be construed to understand that the proceedings under Sections 46 and 56 on the one hand and those under Sections 107 and 111 on the other of the 1958 Act and the pari materia provisions of the 1999 Act would run parallelly. As already held by us, the jurisdiction of rectification conferred by Sections 46 and 56 of the 1958 Act is the very same jurisdiction that is to be exercised under Sections 107 and 111 of the 1958 Act when the issue of invalidity is raised in the suit but by observance of two different procedural regimes.
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Tata Iron & Steel Co.Ltd Vs. State Of West Bengal | this analysis of the provisions of the Act we now proceed to consider the arguments advanced before us. 8. In the first place, the arguments raised before us on behalf of the appellants do not really fall for consideration inasmuch as from the facts extracted from the judgment of the learned Single Judge it is clear that the appellants own the buildings fully and, therefore, the question of part -ownership or any discrimination arising thereto need not be examined at their instance at all. 9. The High Court has noticed the factual position in relation to the appellants before this Court as follows: "The petitioner in Matter No. 288 of 1980 is the Life Insurance Corporation of India. The Corporation owns various premises in Calcutta, about 29 of which are five storeyed or more than five storeyed. Some of the said premises are wholly or in part let out to various tenants and/ or leased out to various lessees who from their respective tenanted or leased out premises, carry on trade or business of a commercial nature of use their respective portions for the purpose of residence. Some of the said premises or in part house the officers of the Corporation.The Tata Iron and Steel Co. Ltd. and the Indian Tube Co. Ltd are the first two petitioners in Matter No. 1300 of 1980. They are the owners of a 18 storeyed building at 43, Chowringhee Road, Calcutta popularly known as "Tata Centre". The petitioners use a portion of the building for their respective business and commercial activities and have let out other portions to various tenants who also use the same for their business and commercial activities. " 10. Even otherwise, the scheme of taxation to which we have adverted to just now, is upon the entire multi-storeyed building or part thereof. However, in any given case, if a person is in occupation of a portion of a multi-storeyed building as tenant, who can also be deemed to be the owner of such multi-storeyed building, he will be liable to pay tax to the extent of portion which is in his occupation and such levy of tax for portions let out or in the occupations of others will not impinge upon the provisions of Article 14 of the Constitution. The expression owner, if read along with Section 3 and Section 5 of the Act, will cover the multi-storeyed building and though for the purpose of taxation different units of the buildings are taken into consideration, the taxation is on the entire building. Therefore, the argument that the unit of assessment changes from the entire multi-storeyed building to individual units occupied by deemed owner or occupier cannot be accepted. The argument that the taxation being on the covered space of a portion whether he be the owner or the occupier in respect of a portion of a building would not be a relevant factor if multi-storeyed building is brought to tax, but we do not think this position is correct. The levy is upon the multi-storeyed building is clear from the provisions of Section 3 of the Act, but if the distribution of the levy is made upon the owners and in some cases upon the occupiers it will not change the purpose of the Act to levy a tax on the multi-storeyed building by reason of the fact that tax is levied on such occupied or covered area in the the multi-storeyed building which is in possession of the owner or the occupier. This kind of classification has been not un- known. 10. The learned counsel for the appellants relied upon the decisions in RE. A. Reference under Government of Ireland Act, 1920, 1936 (2) All ER 111; M/s R.R. Engineering Company vs. Zilla Parishad, Bareilly & Anr., 1980 (3) SCC 330 , and The Hinger-Rampur Coal Co. Ltd. & Ors. vs. The State of Orissa & Ors., 1961 (2) SCR 537 , to contend that the method of determining the rate of levy would be a relevant fact in considering the character of levy and that the standard on which tax is levied is a relevant consideration in determining the nature of the tax although it cannot be regarded as conclusive in the matter. These decisions cannot be of any assistance to the learned counsel for the appellants because from the scheme of taxation in the present case it is clear that they levy is upon the multi-storeyed building or part thereof which may be in the occupation on the owner or a particular occupier who is deemed to be the owner thereof for the purpose of the Act. Thereof, the measure of taxation also does not vary in so far as the Act is concerned. We find no substance in this argument. 12. The argument advanced on behalf of the appellants that if multi-storeyed buildings are classified into five stories and above as against buildings having less than five floors it would offend the doctrine of equality has absolutely no basis. Apart from the fact that somewhere limit has to be drawn between different types of buildings and if Legislature thinks five floors and above should be subject to tax, no fault can be found with it. It cannot be said that those who live in these kinds of buildings which are subject to taxation upto fourth floor are similar to those who live in the buildings having less than five floors because it appears from the provisions of the Municipal Corporation Act and bye-laws thereto certain special amenities have to be provided in the buildings having five floors or more, as noticed by the High Court, Hence, this contention is rejected.13. We do not find that there is any substance in the contention based on discrimination between two sets of buildings nor are we impressed with the other argument that there is discrimination because of want of appropriate relationship or nexus between the nature of levy and the classification of the building made under the Act. | 0[ds]The expression owner, if read along with Section 3 and Section 5 of the Act, will cover the multi-storeyed building and though for the purpose of taxation different units of the buildings are taken into consideration, the taxation is on the entire building. Therefore, the argument that the unit of assessment changes from the entire multi-storeyed building to individual units occupied by deemed owner or occupier cannot be accepted. The argument that the taxation being on the covered space of a portion whether he be the owner or the occupier in respect of a portion of a building would not be a relevant factor if multi-storeyed building is brought to tax, but we do not think this position is correct. The levy is upon the multi-storeyed building is clear from the provisions of Section 3 of the Act, but if the distribution of the levy is made upon the owners and in some cases upon the occupiers it will not change the purpose of the Act to levy a tax on the multi-storeyed building by reason of the fact that tax is levied on such occupied or covered area in the the multi-storeyed building which is in possession of the owner or the occupier. This kind of classification has been not un-from the fact that somewhere limit has to be drawn between different types of buildings and if Legislature thinks five floors and above should be subject to tax, no fault can be found with it. It cannot be said that those who live in these kinds of buildings which are subject to taxation upto fourth floor are similar to those who live in the buildings having less than five floors because it appears from the provisions of the Municipal Corporation Act and bye-laws thereto certain special amenities have to be provided in the buildings having five floors or more, as noticed by the High Court, Hence, this contention is rejected.13. We do not find that there is any substance in the contention based on discrimination between two sets of buildings nor are we impressed with the other argument that there is discrimination because of want of appropriate relationship or nexus between the nature of levy and the classification of the building made under the Act. | 0 | 2,877 | 399 | ### 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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this analysis of the provisions of the Act we now proceed to consider the arguments advanced before us. 8. In the first place, the arguments raised before us on behalf of the appellants do not really fall for consideration inasmuch as from the facts extracted from the judgment of the learned Single Judge it is clear that the appellants own the buildings fully and, therefore, the question of part -ownership or any discrimination arising thereto need not be examined at their instance at all. 9. The High Court has noticed the factual position in relation to the appellants before this Court as follows: "The petitioner in Matter No. 288 of 1980 is the Life Insurance Corporation of India. The Corporation owns various premises in Calcutta, about 29 of which are five storeyed or more than five storeyed. Some of the said premises are wholly or in part let out to various tenants and/ or leased out to various lessees who from their respective tenanted or leased out premises, carry on trade or business of a commercial nature of use their respective portions for the purpose of residence. Some of the said premises or in part house the officers of the Corporation.The Tata Iron and Steel Co. Ltd. and the Indian Tube Co. Ltd are the first two petitioners in Matter No. 1300 of 1980. They are the owners of a 18 storeyed building at 43, Chowringhee Road, Calcutta popularly known as "Tata Centre". The petitioners use a portion of the building for their respective business and commercial activities and have let out other portions to various tenants who also use the same for their business and commercial activities. " 10. Even otherwise, the scheme of taxation to which we have adverted to just now, is upon the entire multi-storeyed building or part thereof. However, in any given case, if a person is in occupation of a portion of a multi-storeyed building as tenant, who can also be deemed to be the owner of such multi-storeyed building, he will be liable to pay tax to the extent of portion which is in his occupation and such levy of tax for portions let out or in the occupations of others will not impinge upon the provisions of Article 14 of the Constitution. The expression owner, if read along with Section 3 and Section 5 of the Act, will cover the multi-storeyed building and though for the purpose of taxation different units of the buildings are taken into consideration, the taxation is on the entire building. Therefore, the argument that the unit of assessment changes from the entire multi-storeyed building to individual units occupied by deemed owner or occupier cannot be accepted. The argument that the taxation being on the covered space of a portion whether he be the owner or the occupier in respect of a portion of a building would not be a relevant factor if multi-storeyed building is brought to tax, but we do not think this position is correct. The levy is upon the multi-storeyed building is clear from the provisions of Section 3 of the Act, but if the distribution of the levy is made upon the owners and in some cases upon the occupiers it will not change the purpose of the Act to levy a tax on the multi-storeyed building by reason of the fact that tax is levied on such occupied or covered area in the the multi-storeyed building which is in possession of the owner or the occupier. This kind of classification has been not un- known. 10. The learned counsel for the appellants relied upon the decisions in RE. A. Reference under Government of Ireland Act, 1920, 1936 (2) All ER 111; M/s R.R. Engineering Company vs. Zilla Parishad, Bareilly & Anr., 1980 (3) SCC 330 , and The Hinger-Rampur Coal Co. Ltd. & Ors. vs. The State of Orissa & Ors., 1961 (2) SCR 537 , to contend that the method of determining the rate of levy would be a relevant fact in considering the character of levy and that the standard on which tax is levied is a relevant consideration in determining the nature of the tax although it cannot be regarded as conclusive in the matter. These decisions cannot be of any assistance to the learned counsel for the appellants because from the scheme of taxation in the present case it is clear that they levy is upon the multi-storeyed building or part thereof which may be in the occupation on the owner or a particular occupier who is deemed to be the owner thereof for the purpose of the Act. Thereof, the measure of taxation also does not vary in so far as the Act is concerned. We find no substance in this argument. 12. The argument advanced on behalf of the appellants that if multi-storeyed buildings are classified into five stories and above as against buildings having less than five floors it would offend the doctrine of equality has absolutely no basis. Apart from the fact that somewhere limit has to be drawn between different types of buildings and if Legislature thinks five floors and above should be subject to tax, no fault can be found with it. It cannot be said that those who live in these kinds of buildings which are subject to taxation upto fourth floor are similar to those who live in the buildings having less than five floors because it appears from the provisions of the Municipal Corporation Act and bye-laws thereto certain special amenities have to be provided in the buildings having five floors or more, as noticed by the High Court, Hence, this contention is rejected.13. We do not find that there is any substance in the contention based on discrimination between two sets of buildings nor are we impressed with the other argument that there is discrimination because of want of appropriate relationship or nexus between the nature of levy and the classification of the building made under the Act.
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### Explanation:
The expression owner, if read along with Section 3 and Section 5 of the Act, will cover the multi-storeyed building and though for the purpose of taxation different units of the buildings are taken into consideration, the taxation is on the entire building. Therefore, the argument that the unit of assessment changes from the entire multi-storeyed building to individual units occupied by deemed owner or occupier cannot be accepted. The argument that the taxation being on the covered space of a portion whether he be the owner or the occupier in respect of a portion of a building would not be a relevant factor if multi-storeyed building is brought to tax, but we do not think this position is correct. The levy is upon the multi-storeyed building is clear from the provisions of Section 3 of the Act, but if the distribution of the levy is made upon the owners and in some cases upon the occupiers it will not change the purpose of the Act to levy a tax on the multi-storeyed building by reason of the fact that tax is levied on such occupied or covered area in the the multi-storeyed building which is in possession of the owner or the occupier. This kind of classification has been not un-from the fact that somewhere limit has to be drawn between different types of buildings and if Legislature thinks five floors and above should be subject to tax, no fault can be found with it. It cannot be said that those who live in these kinds of buildings which are subject to taxation upto fourth floor are similar to those who live in the buildings having less than five floors because it appears from the provisions of the Municipal Corporation Act and bye-laws thereto certain special amenities have to be provided in the buildings having five floors or more, as noticed by the High Court, Hence, this contention is rejected.13. We do not find that there is any substance in the contention based on discrimination between two sets of buildings nor are we impressed with the other argument that there is discrimination because of want of appropriate relationship or nexus between the nature of levy and the classification of the building made under the Act.
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State Of Haryana Vs. Navir Singh | A memorandum reducing other terms and conditions with regard to the deposit in the form of a document, however, shall require registration under Section 17(1)c) of the Registration Act, but in a case in which such a document does not incorporate any term and condition, it is merely evidential and does not require registration. This Court had the occasion to consider this question in the case of Rachpal v. Bhagwandas, AIR 37 1950 SC 272, and the statement of law made therein supports the view we have taken, which would be evident from the following passage of the judgment: “4. A mortgage by deposit of title-deeds is a form of mortgage recognized by S. 58(f), T.P. Act, which provides that it may be effected in certain towns (including Calcutta) by a person “delivering to his creditor or his agent documents of title to immovable property with intent to create a security thereon.” That is to say, when the debtor deposits with the creditor the title-deeds of his property with intent to create a security, the law implies a contract between the parties to create a mortgage, and no registered instrument is required under S.59 as in other forms of mortgage. But if the parties choose to reduce the contract to writing, the implication is excluded by their express bargain, and the document will be the sole evidence of its terms. In such a case the deposit and the document both form integral parts of the transaction and are essential ingredients in the creation of the mortgage. As the deposit alone is not intended to create the charge and the document, which constitutes the bargain regarding the security, is also necessary and operates to create the charge in conjunction with the deposit, it requires registration under S.17, Registration Act, 1908, as a non-testamentary instrument creating an interest in immovable property, where the value of such property is one hundred rupees and upwards. The time factor is not decisive. The document may be handed over to the creditor along with the title-deeds and yet may not be registrable……” This Court while relying on the aforesaid judgment in the case of United Bank of India v. M/s. Lekharam Sonaram & Co.,AIR 1965 SC 1591 reiterated as follows: “7. …………It is essential to bear in mind that the essence of a mortgage by deposit of title-deeds is the actual handing over by a borrower to the lender of documents of title to immovable property with the intention that those documents shall constitute a security which will enable the creditor ultimately to recover the money which he has lent. But if the parties choose to reduce the contract to writing, this implication of law is excluded by their express bargain, and the document will be the sole evidence of its terms. In such a case the deposit and the document both form integral parts of the transaction and are essential ingredients in the creation of the mortgage. It follows that in such a case the document which constitutes the bargain regarding security requires registration under Section 17 of the Indian Registration Act, 1908, as a non-testamentary instrument creating an interest in immovable property, where the value of such property is one hundred rupees and upwards. If a document of this character is not registered it cannot be used in the evidence at all and the transaction itself cannot be proved by oral evidence either…….” Bearing in mind the principles aforesaid, we proceed to consider the facts of the present case. It is relevant here to state that letter dated 29th March, 2007 of the Finance Commissioner inter alia makes “instrument of deposit of title-deeds compulsorily registrable under Section 17(1)(c) of the Registration Act.” In such contingency, registration fee and stamp duty would be leviable. But the question is whether mortgage by deposit of title-deeds is required to be done by an instrument at all. In our opinion, it may be effected in specified town by the debtor delivering to his creditor documents of title to immoveable property with the intent to create a security thereon. No instrument is required to be drawn for this purpose. However, the parties may choose to have a memorandum prepared only showing deposit of the title-deeds. In such a case also registration is not required. But in a case in which the memorandum recorded in writing creates right, liability or extinguishes those, same requires registration. In our opinion, the letter of the Finance Commissioner would apply in cases where the instrument of deposit of title-deeds incorporates terms and conditions in addition to what flow from the mortgage by deposit of title-deeds. But in that case there has to be an instrument which is an integral part of the transaction regarding the mortgage by deposit of title-deeds. A document merely recording a transaction which is already concluded and which does not create any rights and liabilities does not require registration. Nothing has been brought on record to show existence of any instrument which has created or extinguished any right or liability. In the case in hand, the original deeds have just been deposited with the bank. In the face of it, we are of opinion that the charge of mortgage can be entered into revenue record in respect of mortgage by deposit of title-deeds and for that, instrument of mortgage is not necessary. Mortgage by deposit of title-deeds further does not require registration. Hence, the question of payment of registration fee and stamp duty does not arise. By way of abundant caution and at the cost of repetition we may, however, observe that when the borrower and the creditor choose to reduce the contract in writing and if such a document is the sole evidence of terms between them, the document shall form integral part of the transaction and same shall require registration under Section 17 of the Registration Act. From conspectus of what we have observed above, we do not find any error in the judgment of the High Court. | 0[ds]In our opinion, it may be effected in specified town by the debtor delivering to his creditor documents of title to immoveable property with the intent to create a security thereon. No instrument is required to be drawn for this purpose. However, the parties may choose to have a memorandum prepared only showing deposit of the title-deeds. In such a case also registration is not required. But in a case in which the memorandum recorded in writing creates right, liability or extinguishes those, same requires registration. In our opinion, the letter of the Finance Commissioner would apply in cases where the instrument of deposit of title-deeds incorporates terms and conditions in addition to what flow from the mortgage by deposit of title-deeds. But in that case there has to be an instrument which is an integral part of the transaction regarding the mortgage by deposit of title-deeds. A document merely recording a transaction which is already concluded and which does not create any rights and liabilities does not require registration. Nothing has been brought on record to show existence of any instrument which has created or extinguished any right or liability. In the case in hand, the original deeds have just been deposited with the bank. In the face of it, we are of opinion that the charge of mortgage can be entered into revenue record in respect of mortgage by deposit of title-deeds and for that, instrument of mortgage is not necessary. Mortgage by deposit of title-deeds further does not require registration. Hence, the question of payment of registration fee and stamp duty does not arise. By way of abundant caution and at the cost of repetition we may, however, observe that when the borrower and the creditor choose to reduce the contract in writing and if such a document is the sole evidence of terms between them, the document shall form integral part of the transaction and same shall require registration under Section 17 of the Registration Act. From conspectus of what we have observed above, we do not find any error in the judgment of the Highaspect of the matter has not been considered by the High Court in the impugned judgment. As the same goes to the root of the matter, we have no option than to set aside the impugned order and remit the matter back for its fresh consideration in accordance with law in the light of the observation made above. | 0 | 2,425 | 441 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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A memorandum reducing other terms and conditions with regard to the deposit in the form of a document, however, shall require registration under Section 17(1)c) of the Registration Act, but in a case in which such a document does not incorporate any term and condition, it is merely evidential and does not require registration. This Court had the occasion to consider this question in the case of Rachpal v. Bhagwandas, AIR 37 1950 SC 272, and the statement of law made therein supports the view we have taken, which would be evident from the following passage of the judgment: “4. A mortgage by deposit of title-deeds is a form of mortgage recognized by S. 58(f), T.P. Act, which provides that it may be effected in certain towns (including Calcutta) by a person “delivering to his creditor or his agent documents of title to immovable property with intent to create a security thereon.” That is to say, when the debtor deposits with the creditor the title-deeds of his property with intent to create a security, the law implies a contract between the parties to create a mortgage, and no registered instrument is required under S.59 as in other forms of mortgage. But if the parties choose to reduce the contract to writing, the implication is excluded by their express bargain, and the document will be the sole evidence of its terms. In such a case the deposit and the document both form integral parts of the transaction and are essential ingredients in the creation of the mortgage. As the deposit alone is not intended to create the charge and the document, which constitutes the bargain regarding the security, is also necessary and operates to create the charge in conjunction with the deposit, it requires registration under S.17, Registration Act, 1908, as a non-testamentary instrument creating an interest in immovable property, where the value of such property is one hundred rupees and upwards. The time factor is not decisive. The document may be handed over to the creditor along with the title-deeds and yet may not be registrable……” This Court while relying on the aforesaid judgment in the case of United Bank of India v. M/s. Lekharam Sonaram & Co.,AIR 1965 SC 1591 reiterated as follows: “7. …………It is essential to bear in mind that the essence of a mortgage by deposit of title-deeds is the actual handing over by a borrower to the lender of documents of title to immovable property with the intention that those documents shall constitute a security which will enable the creditor ultimately to recover the money which he has lent. But if the parties choose to reduce the contract to writing, this implication of law is excluded by their express bargain, and the document will be the sole evidence of its terms. In such a case the deposit and the document both form integral parts of the transaction and are essential ingredients in the creation of the mortgage. It follows that in such a case the document which constitutes the bargain regarding security requires registration under Section 17 of the Indian Registration Act, 1908, as a non-testamentary instrument creating an interest in immovable property, where the value of such property is one hundred rupees and upwards. If a document of this character is not registered it cannot be used in the evidence at all and the transaction itself cannot be proved by oral evidence either…….” Bearing in mind the principles aforesaid, we proceed to consider the facts of the present case. It is relevant here to state that letter dated 29th March, 2007 of the Finance Commissioner inter alia makes “instrument of deposit of title-deeds compulsorily registrable under Section 17(1)(c) of the Registration Act.” In such contingency, registration fee and stamp duty would be leviable. But the question is whether mortgage by deposit of title-deeds is required to be done by an instrument at all. In our opinion, it may be effected in specified town by the debtor delivering to his creditor documents of title to immoveable property with the intent to create a security thereon. No instrument is required to be drawn for this purpose. However, the parties may choose to have a memorandum prepared only showing deposit of the title-deeds. In such a case also registration is not required. But in a case in which the memorandum recorded in writing creates right, liability or extinguishes those, same requires registration. In our opinion, the letter of the Finance Commissioner would apply in cases where the instrument of deposit of title-deeds incorporates terms and conditions in addition to what flow from the mortgage by deposit of title-deeds. But in that case there has to be an instrument which is an integral part of the transaction regarding the mortgage by deposit of title-deeds. A document merely recording a transaction which is already concluded and which does not create any rights and liabilities does not require registration. Nothing has been brought on record to show existence of any instrument which has created or extinguished any right or liability. In the case in hand, the original deeds have just been deposited with the bank. In the face of it, we are of opinion that the charge of mortgage can be entered into revenue record in respect of mortgage by deposit of title-deeds and for that, instrument of mortgage is not necessary. Mortgage by deposit of title-deeds further does not require registration. Hence, the question of payment of registration fee and stamp duty does not arise. By way of abundant caution and at the cost of repetition we may, however, observe that when the borrower and the creditor choose to reduce the contract in writing and if such a document is the sole evidence of terms between them, the document shall form integral part of the transaction and same shall require registration under Section 17 of the Registration Act. From conspectus of what we have observed above, we do not find any error in the judgment of the High Court.
### Response:
0
### Explanation:
In our opinion, it may be effected in specified town by the debtor delivering to his creditor documents of title to immoveable property with the intent to create a security thereon. No instrument is required to be drawn for this purpose. However, the parties may choose to have a memorandum prepared only showing deposit of the title-deeds. In such a case also registration is not required. But in a case in which the memorandum recorded in writing creates right, liability or extinguishes those, same requires registration. In our opinion, the letter of the Finance Commissioner would apply in cases where the instrument of deposit of title-deeds incorporates terms and conditions in addition to what flow from the mortgage by deposit of title-deeds. But in that case there has to be an instrument which is an integral part of the transaction regarding the mortgage by deposit of title-deeds. A document merely recording a transaction which is already concluded and which does not create any rights and liabilities does not require registration. Nothing has been brought on record to show existence of any instrument which has created or extinguished any right or liability. In the case in hand, the original deeds have just been deposited with the bank. In the face of it, we are of opinion that the charge of mortgage can be entered into revenue record in respect of mortgage by deposit of title-deeds and for that, instrument of mortgage is not necessary. Mortgage by deposit of title-deeds further does not require registration. Hence, the question of payment of registration fee and stamp duty does not arise. By way of abundant caution and at the cost of repetition we may, however, observe that when the borrower and the creditor choose to reduce the contract in writing and if such a document is the sole evidence of terms between them, the document shall form integral part of the transaction and same shall require registration under Section 17 of the Registration Act. From conspectus of what we have observed above, we do not find any error in the judgment of the Highaspect of the matter has not been considered by the High Court in the impugned judgment. As the same goes to the root of the matter, we have no option than to set aside the impugned order and remit the matter back for its fresh consideration in accordance with law in the light of the observation made above.
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Syndicate Bank Vs. The General Secretary, Syndicate Bank Stff Association and Another | with no enquiry. The right of the employer to adduce evidence in both the situations is well recognised. So the employer is entitled to adduce evidence, for the first time before the Tribunal even if the employer had held no inquiry or the inquiry held by the employer is found to be perverse". 17. Two principles emerge from the decisions (1) principles of natural justice and duty to act in just, fair and reasonable manner have to be read in Certified Standing Orders which have statutory force. These can be applied by Labour Court and Industrial Tribunal even to relations between management and workman though based on contractual obligations; and (2) where domestic inquiry was not held or it was vitiated for some reason the Tribunal or Court adjudicating an industrial dispute can itself go into the question raised before it on the basis of the evidence and other material on record. 14. In the present case action was taken by the Bank under Clause 16 of the Bipartite Settlement. It is not disputed that Dayananda absented himself from the work for a period of 90 or more consecutive days. It was thereafter that the Bank served a notice on him calling upon to report for duty within 30 days of the notice stating therein the grounds for the Bank to come to the conclusion that Dayananda had no intention of joining duties. Dayananda did not respond to the notice at all. On the expiry of the notice period Bank passed orders that Dayananda had voluntarily retired from the service of the Bank. 15. Now what are the requirements of principles of natural justice, which are required to be observed ? These are : (1) workman should known the nature of the complaint or accusation; (2) an opportunity to state his case; and (3) the management should act in good faith which means that the action of the management should be fair, reasonable and just. All these three criteria have been fully met in the present case. Principles of natural justice are inbuilt in Clause 16 of the Bipartite Settlement. When evidence was led before the Tribunal, Bank produced the registered covers, which had been received back with the endorsement "refused" and the addressee "not found during delivery time". Dayananda said he never refused to receive the notice. In these circumstances Tribunal thought it necessary to hold that notice was not served on Dayananda as the Bank did not examine the postman. The notice was sent on the correct address of Dayananda and it was received back with the postal endorsement "refused". A clear presumption arose in favour of the Bank and against Dayananda. Yet the Tribunal held that no notice was given to Dayananda as postman was not produced by the Bank. This appears to us to be rather an incongruous finding by the Tribunal. Unfortunately, High Court did not go into this question at all. Considering the conduct of Dayananda all this period and after three years of his having voluntarily retired from the Bank in terms of Clause 16 of the Bipartite Settlement his statement that he did not receive the notice was a sheer lie. His whole edifice was built on falsehood and yet the Tribunal was there to give him relief on the platter though at the same time criticised his conduct during his employment with the Bank. 16. It is no point laying stress on the principles of natural justice without understanding their scope or real meaning. There are two essential elements of natural justice which are : (a) no man shall be judge in his own cause; and (b) no man shall be condemned, either civilly or criminally, without being afforded an opportunity of being heard in answer to the charge made against him. In course of time by various judicial pronouncements these two principles of natural justice have been expanded, i.e., a party must have due notice when the Tribunal will proceed; Tribunal should not act on irrelevant evidence or shut out relevant evidence; if the Tribunal consists of several members they all must sit together at all times; Tribunal should act independently and should not be biased against any party; its action should be based on good faith and order and should act in just, fair and reasonable manner. These in fact are the extensions or refinements of the main principles of natural justice stated above. 17. Bank has followed the requirements of Clause 16 of the Bipartite Settlement. It rightly held that Dayananda has voluntarily retired from the service of the Bank. Under these circumstances it was not necessary for the Bank to hold any inquiry before passing the order. An inquiry would have been necessary if Dayananda had submitted his explanation which was not acceptable to the Bank or contended that he did report for duty but was not allowed to join by the Bank. Nothing of the like has happened here. Assuming for a moment that inquiry was necessitated, evidence led before the Tribunal clearly showed that notice was given to Dayananda and it is he who defaulted and offered no explanation of his absence from duty and did not report for duty within 30 days of the notice as required in Clause 16 of the Bipartite Settlement.18. This undue reliance on the principles of natural justice by the Tribunal and even by the High Court has certainly led to miscarriage of justice as far as Bank is concerned. Conduct of Dayananda as an employee of the Bank has been astounding. It was not a case where the Tribunal should have given any relief to Dayananda and yet the Bank was directed to reinstate him with continuity of service and mercifully the latter part of the relief High Court struck down. There was no occasion for the Tribunal to direct that Dayananda be instated in service or for the High Court not to have exercised its jurisdiction under Article 226 of the Constitution to set aside the Award. | 1[ds]. In these circumstances Tribunal thought it necessary to hold that notice was not served on Dayananda as the Bank did not examine the postman. The notice was sent on the correct address of Dayananda and it was received back with the postal endorsement "refused". A clear presumption arose in favour of the Bank and against Dayananda. Yet the Tribunal held that no notice was given to Dayananda as postman was not produced by the Bank. This appears to us to be rather an incongruous finding by the Tribunal. Unfortunately, High Court did not go into this question at all. Considering the conduct of Dayananda all this period and after three years of his having voluntarily retired from the Bank in terms of Clause 16 of the Bipartite Settlement his statement that he did not receive the notice was a sheer lie. His whole edifice was built on falsehood and yet the Tribunal was there to give him relief on the platter though at the same time criticised his conduct during his employment with theBank has followed the requirements of Clause 16 of the Bipartite Settlement. It rightly held that Dayananda has voluntarily retired from the service of the Bank. Under these circumstances it was not necessary for the Bank to hold any inquiry before passing the order. An inquiry would have been necessary if Dayananda had submitted his explanation which was not acceptable to the Bank or contended that he did report for duty but was not allowed to join by the Bank. Nothing of the like has happened here. Assuming for a moment that inquiry was necessitated, evidence led before the Tribunal clearly showed that notice was given to Dayananda and it is he who defaulted and offered no explanation of his absence from duty and did not report for duty within 30 days of the notice as required in Clause 16 of the Bipartite Settlement.18. This undue reliance on the principles of natural justice by the Tribunal and even by the High Court has certainly led to miscarriage of justice as far as Bank is concerned. Conduct of Dayananda as an employee of the Bank has been astounding. It was not a case where the Tribunal should have given any relief to Dayananda and yet the Bank was directed to reinstate him with continuity of service and mercifully the latter part of the relief High Court struck down. There was no occasion for the Tribunal to direct that Dayananda be instated in service or for the High Court not to have exercised its jurisdiction under Article 226 of the Constitution to set aside the Award.High Court has noticed that since September, 26, 1994 Dayananda had been paid wages in terms of Sectionof the Industrial Disputes Act, 1947. When the matter came to this Court on special leave petition, while issuing notice on February 8, 1999 it was ordered "Status quo regarding implementation of the order of the High Court as existing today to continue till further orders". It is not clear how long Dayananda has been paid his wages. | 1 | 6,075 | 546 | ### Instruction:
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with no enquiry. The right of the employer to adduce evidence in both the situations is well recognised. So the employer is entitled to adduce evidence, for the first time before the Tribunal even if the employer had held no inquiry or the inquiry held by the employer is found to be perverse". 17. Two principles emerge from the decisions (1) principles of natural justice and duty to act in just, fair and reasonable manner have to be read in Certified Standing Orders which have statutory force. These can be applied by Labour Court and Industrial Tribunal even to relations between management and workman though based on contractual obligations; and (2) where domestic inquiry was not held or it was vitiated for some reason the Tribunal or Court adjudicating an industrial dispute can itself go into the question raised before it on the basis of the evidence and other material on record. 14. In the present case action was taken by the Bank under Clause 16 of the Bipartite Settlement. It is not disputed that Dayananda absented himself from the work for a period of 90 or more consecutive days. It was thereafter that the Bank served a notice on him calling upon to report for duty within 30 days of the notice stating therein the grounds for the Bank to come to the conclusion that Dayananda had no intention of joining duties. Dayananda did not respond to the notice at all. On the expiry of the notice period Bank passed orders that Dayananda had voluntarily retired from the service of the Bank. 15. Now what are the requirements of principles of natural justice, which are required to be observed ? These are : (1) workman should known the nature of the complaint or accusation; (2) an opportunity to state his case; and (3) the management should act in good faith which means that the action of the management should be fair, reasonable and just. All these three criteria have been fully met in the present case. Principles of natural justice are inbuilt in Clause 16 of the Bipartite Settlement. When evidence was led before the Tribunal, Bank produced the registered covers, which had been received back with the endorsement "refused" and the addressee "not found during delivery time". Dayananda said he never refused to receive the notice. In these circumstances Tribunal thought it necessary to hold that notice was not served on Dayananda as the Bank did not examine the postman. The notice was sent on the correct address of Dayananda and it was received back with the postal endorsement "refused". A clear presumption arose in favour of the Bank and against Dayananda. Yet the Tribunal held that no notice was given to Dayananda as postman was not produced by the Bank. This appears to us to be rather an incongruous finding by the Tribunal. Unfortunately, High Court did not go into this question at all. Considering the conduct of Dayananda all this period and after three years of his having voluntarily retired from the Bank in terms of Clause 16 of the Bipartite Settlement his statement that he did not receive the notice was a sheer lie. His whole edifice was built on falsehood and yet the Tribunal was there to give him relief on the platter though at the same time criticised his conduct during his employment with the Bank. 16. It is no point laying stress on the principles of natural justice without understanding their scope or real meaning. There are two essential elements of natural justice which are : (a) no man shall be judge in his own cause; and (b) no man shall be condemned, either civilly or criminally, without being afforded an opportunity of being heard in answer to the charge made against him. In course of time by various judicial pronouncements these two principles of natural justice have been expanded, i.e., a party must have due notice when the Tribunal will proceed; Tribunal should not act on irrelevant evidence or shut out relevant evidence; if the Tribunal consists of several members they all must sit together at all times; Tribunal should act independently and should not be biased against any party; its action should be based on good faith and order and should act in just, fair and reasonable manner. These in fact are the extensions or refinements of the main principles of natural justice stated above. 17. Bank has followed the requirements of Clause 16 of the Bipartite Settlement. It rightly held that Dayananda has voluntarily retired from the service of the Bank. Under these circumstances it was not necessary for the Bank to hold any inquiry before passing the order. An inquiry would have been necessary if Dayananda had submitted his explanation which was not acceptable to the Bank or contended that he did report for duty but was not allowed to join by the Bank. Nothing of the like has happened here. Assuming for a moment that inquiry was necessitated, evidence led before the Tribunal clearly showed that notice was given to Dayananda and it is he who defaulted and offered no explanation of his absence from duty and did not report for duty within 30 days of the notice as required in Clause 16 of the Bipartite Settlement.18. This undue reliance on the principles of natural justice by the Tribunal and even by the High Court has certainly led to miscarriage of justice as far as Bank is concerned. Conduct of Dayananda as an employee of the Bank has been astounding. It was not a case where the Tribunal should have given any relief to Dayananda and yet the Bank was directed to reinstate him with continuity of service and mercifully the latter part of the relief High Court struck down. There was no occasion for the Tribunal to direct that Dayananda be instated in service or for the High Court not to have exercised its jurisdiction under Article 226 of the Constitution to set aside the Award.
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### Explanation:
. In these circumstances Tribunal thought it necessary to hold that notice was not served on Dayananda as the Bank did not examine the postman. The notice was sent on the correct address of Dayananda and it was received back with the postal endorsement "refused". A clear presumption arose in favour of the Bank and against Dayananda. Yet the Tribunal held that no notice was given to Dayananda as postman was not produced by the Bank. This appears to us to be rather an incongruous finding by the Tribunal. Unfortunately, High Court did not go into this question at all. Considering the conduct of Dayananda all this period and after three years of his having voluntarily retired from the Bank in terms of Clause 16 of the Bipartite Settlement his statement that he did not receive the notice was a sheer lie. His whole edifice was built on falsehood and yet the Tribunal was there to give him relief on the platter though at the same time criticised his conduct during his employment with theBank has followed the requirements of Clause 16 of the Bipartite Settlement. It rightly held that Dayananda has voluntarily retired from the service of the Bank. Under these circumstances it was not necessary for the Bank to hold any inquiry before passing the order. An inquiry would have been necessary if Dayananda had submitted his explanation which was not acceptable to the Bank or contended that he did report for duty but was not allowed to join by the Bank. Nothing of the like has happened here. Assuming for a moment that inquiry was necessitated, evidence led before the Tribunal clearly showed that notice was given to Dayananda and it is he who defaulted and offered no explanation of his absence from duty and did not report for duty within 30 days of the notice as required in Clause 16 of the Bipartite Settlement.18. This undue reliance on the principles of natural justice by the Tribunal and even by the High Court has certainly led to miscarriage of justice as far as Bank is concerned. Conduct of Dayananda as an employee of the Bank has been astounding. It was not a case where the Tribunal should have given any relief to Dayananda and yet the Bank was directed to reinstate him with continuity of service and mercifully the latter part of the relief High Court struck down. There was no occasion for the Tribunal to direct that Dayananda be instated in service or for the High Court not to have exercised its jurisdiction under Article 226 of the Constitution to set aside the Award.High Court has noticed that since September, 26, 1994 Dayananda had been paid wages in terms of Sectionof the Industrial Disputes Act, 1947. When the matter came to this Court on special leave petition, while issuing notice on February 8, 1999 it was ordered "Status quo regarding implementation of the order of the High Court as existing today to continue till further orders". It is not clear how long Dayananda has been paid his wages.
|
M.C. Abraham & Others Vs. State of Maharashtra & Others | as the order dated 11th January, 2002 is concerned, it gives an impression that the High Court has held that it was not open to the investigating officer, in view of the order passed by the High Court dated 7th September, 2001 rejecting the anticipatory bail petitions of some of the appellants, to treat the case as C summary as it has been found that no funds had been misappropriated. By the impugned order dated 16th January, 2002 the High Court has in fact shown its anxiety to see that the "State expeditiously conclude the investigation in the case and file charge-sheet". We are afraid, such a direction cannot be sustained in view of the settled principle of law on the subject. It is not necessary for us to multiply authorities but we may only refer to Abhinanda Jha and others vs. Dinesh Mishra : AIR 1968 SC 117 , where this Court observed thus:- "Then the question is, what is the position, when the Magistrate is dealing with a report submitted by the police, under Section 173, that no case is made out for sending up an accused for trial, which report, as we have already indicated, is called, in the area in question, as a final report? Even in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case, in our opinion, the Magistrate will have ample jurisdiction to give directions to the police, under S. 156(3), to make a further investigation. That is, if the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under Section 156(3). The police, after such further investigation, may submit a charge-sheet, or, again submit a final report, depending upon the further investigation made by them. If ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence, under section 190(1)(b), notwithstanding the contrary opinion of the police, expressed in the final report........The functions of the Magistracy and the police, are entirely different, and though, in the circumstances mentioned earlier, the Magistrate may or may not accept the report, and take suitable action, according to law, he cannot certainly infringe (sic impinge?) upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view.Therefore, to conclude, there is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under section 169 of the Code, that there is no case made out for sending up an accused for trial". 17. The principle, therefore, is well settled that it is for the investigating agency to submit a report to the Magistrate after full and complete investigation. The investigating agency may submit a report finding the allegations substantiated. It is also open to the investigating agency to submit a report finding no material to support the allegations made in the first information report. It is open to the Magistrate concerned to accept the report or to order further enquiry. But what is clear is that the Magistrate cannot direct the investigating agency to submit a report that is in accord with his views. Even in a case where a report is submitted by the investigating agency finding that no case is made out for prosecution, it is open to the Magistrate to dis-agree with the report and to take cognizance, but what he cannot do is to direct the investigating agency to submit a report to the effect that the allegations have been supported by the material collected during the course of investigation.18. In the instant case the investigation is in progress. It is not necessary for us to comment on the tentative view of the investigating agency. It is the statutory duty of the investigating agency to fully investigate the matter and then submit a report to the concerned Magistrate. The Magistrate will thereafter proceed to pass appropriate order in accordance with law. It was not appropriate for the High Court in these circumstance to issue a direction that the case should not only be investigated, but a charge sheet must be submitted. In our view the High Court exceeded its jurisdiction in making this direction which deserves to be set aside. While it is open to the High Court, in appropriate cases, to give directions for prompt investigation etc., the High Court cannot direct the investigating agency to submit a report that is in accord with its views as that would amount to unwarranted interference with the investigation of the case by inhibiting the exercise of statutory power by the investigating agency.19. In these circumstances, therefore, we set aside the direction contained in the order of the High Court dated 10th January, 2002 directing the arrest of the appellants. We also set aside the direction made by the High Court directing the investigating agency to submit a charge-sheet. However, the investigating agency must promptly take all necessary steps, conclude the investigation and submit its report to the concerned Magistrate. It is open to the investigating agency to submit such report as it considers appropriate, having regard to the facts and circumstances of the case and result of the investigation. after such a final report is submitted by the investigating agency, the concerned Magistrate will proceed to deal with the matter further in accordance with law without being influenced by any observation made by the High Court in the impugned orders. 20. | 1[ds]15. In the instant case the appellants had not been arrested. It appears that the result of the investigation showed that no amount had been defalcated. We are here not concerned with the correctness of the conclusion that the investigating officer may have reached. What is, however, significant is that the investigating officer did not consider it necessary, having regard to all the facts and circumstances of the case, to arrest the accused. In such a case there was no justification for the High Court to direct the State to arrest the appellants against whom the first information report was lodged, as it amounted to unjustified interference in the investigation of the case. The mere fact that the bail applications of some of the appellants had been rejected is no ground for directing their immediate arrest. In the very nature of things, a person may move the Court on mere apprehension that he may be arrested. The Court may or may not grant anticipatory bail depending upon the facts and circumstances of the case and the material placed before the Court. There may, however, be cases where the application for grant of anticipatory bail may be rejected and ultimately, after investigation, the said person may not be put up for trial as no material is disclosed against him in the course of investigation. The High Court proceeded on the assumption that since petitions for anticipatory bail had been rejected, there was no option open for the State but to arrest those persons. This assumption, to our mind, is erroneous. A person whose petition for grant of anticipatory bail has been rejected may or may not be arrested by the investigating officer depending upon the facts and circumstances of the case, nature of the offence, the background of the accused, the facts disclosed in the course of investigation and other relevant considerations.16. We have, therefore, no doubt that the order dated 10th January, 2002, in so far as it directs the arrest of the appellants, must be set aside. So far as the order dated 11th January, 2002 is concerned, it gives an impression that the High Court has held that it was not open to the investigating officer, in view of the order passed by the High Court dated 7th September, 2001 rejecting the anticipatory bail petitions of some of the appellants, to treat the case as C summary as it has been found that no funds had been misappropriated. By the impugned order dated 16th January, 2002 the High Court has in fact shown its anxiety to see that the "State expeditiously conclude the investigation in the case and file charge-sheet". We are afraid, such a direction cannot be sustained in view of the settled principle of law on the subject.The principle, therefore, is well settled that it is for the investigating agency to submit a report to the Magistrate after full and complete investigation. The investigating agency may submit a report finding the allegations substantiated. It is also open to the investigating agency to submit a report finding no material to support the allegations made in the first information report. It is open to the Magistrate concerned to accept the report or to order further enquiry. But what is clear is that the Magistrate cannot direct the investigating agency to submit a report that is in accord with his views. Even in a case where a report is submitted by the investigating agency finding that no case is made out for prosecution, it is open to the Magistrate to dis-agree with the report and to take cognizance, but what he cannot do is to direct the investigating agency to submit a report to the effect that the allegations have been supported by the material collected during the course of investigation.18. In the instant case the investigation is in progress. It is not necessary for us to comment on the tentative view of the investigating agency. It is the statutory duty of the investigating agency to fully investigate the matter and then submit a report to the concerned Magistrate. The Magistrate will thereafter proceed to pass appropriate order in accordance with law. It was not appropriate for the High Court in these circumstance to issue a direction that the case should not only be investigated, but a charge sheet must be submitted. In our view the High Court exceeded its jurisdiction in making this direction which deserves to be set aside. While it is open to the High Court, in appropriate cases, to give directions for prompt investigation etc., the High Court cannot direct the investigating agency to submit a report that is in accord with its views as that would amount to unwarranted interference with the investigation of the case by inhibiting the exercise of statutory power by the investigating agency.19. In these circumstances, therefore, we set aside the direction contained in the order of the High Court dated 10th January, 2002 directing the arrest of the appellants. We also set aside the direction made by the High Court directing the investigating agency to submit a charge-sheet. However, the investigating agency must promptly take all necessary steps, conclude the investigation and submit its report to the concerned Magistrate. It is open to the investigating agency to submit such report as it considers appropriate, having regard to the facts and circumstances of the case and result of the investigation. after such a final report is submitted by the investigating agency, the concerned Magistrate will proceed to deal with the matter further in accordance with law without being influenced by any observation made by the High Court in the impugned orders. | 1 | 4,239 | 1,028 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
as the order dated 11th January, 2002 is concerned, it gives an impression that the High Court has held that it was not open to the investigating officer, in view of the order passed by the High Court dated 7th September, 2001 rejecting the anticipatory bail petitions of some of the appellants, to treat the case as C summary as it has been found that no funds had been misappropriated. By the impugned order dated 16th January, 2002 the High Court has in fact shown its anxiety to see that the "State expeditiously conclude the investigation in the case and file charge-sheet". We are afraid, such a direction cannot be sustained in view of the settled principle of law on the subject. It is not necessary for us to multiply authorities but we may only refer to Abhinanda Jha and others vs. Dinesh Mishra : AIR 1968 SC 117 , where this Court observed thus:- "Then the question is, what is the position, when the Magistrate is dealing with a report submitted by the police, under Section 173, that no case is made out for sending up an accused for trial, which report, as we have already indicated, is called, in the area in question, as a final report? Even in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case, in our opinion, the Magistrate will have ample jurisdiction to give directions to the police, under S. 156(3), to make a further investigation. That is, if the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under Section 156(3). The police, after such further investigation, may submit a charge-sheet, or, again submit a final report, depending upon the further investigation made by them. If ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence, under section 190(1)(b), notwithstanding the contrary opinion of the police, expressed in the final report........The functions of the Magistracy and the police, are entirely different, and though, in the circumstances mentioned earlier, the Magistrate may or may not accept the report, and take suitable action, according to law, he cannot certainly infringe (sic impinge?) upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view.Therefore, to conclude, there is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under section 169 of the Code, that there is no case made out for sending up an accused for trial". 17. The principle, therefore, is well settled that it is for the investigating agency to submit a report to the Magistrate after full and complete investigation. The investigating agency may submit a report finding the allegations substantiated. It is also open to the investigating agency to submit a report finding no material to support the allegations made in the first information report. It is open to the Magistrate concerned to accept the report or to order further enquiry. But what is clear is that the Magistrate cannot direct the investigating agency to submit a report that is in accord with his views. Even in a case where a report is submitted by the investigating agency finding that no case is made out for prosecution, it is open to the Magistrate to dis-agree with the report and to take cognizance, but what he cannot do is to direct the investigating agency to submit a report to the effect that the allegations have been supported by the material collected during the course of investigation.18. In the instant case the investigation is in progress. It is not necessary for us to comment on the tentative view of the investigating agency. It is the statutory duty of the investigating agency to fully investigate the matter and then submit a report to the concerned Magistrate. The Magistrate will thereafter proceed to pass appropriate order in accordance with law. It was not appropriate for the High Court in these circumstance to issue a direction that the case should not only be investigated, but a charge sheet must be submitted. In our view the High Court exceeded its jurisdiction in making this direction which deserves to be set aside. While it is open to the High Court, in appropriate cases, to give directions for prompt investigation etc., the High Court cannot direct the investigating agency to submit a report that is in accord with its views as that would amount to unwarranted interference with the investigation of the case by inhibiting the exercise of statutory power by the investigating agency.19. In these circumstances, therefore, we set aside the direction contained in the order of the High Court dated 10th January, 2002 directing the arrest of the appellants. We also set aside the direction made by the High Court directing the investigating agency to submit a charge-sheet. However, the investigating agency must promptly take all necessary steps, conclude the investigation and submit its report to the concerned Magistrate. It is open to the investigating agency to submit such report as it considers appropriate, having regard to the facts and circumstances of the case and result of the investigation. after such a final report is submitted by the investigating agency, the concerned Magistrate will proceed to deal with the matter further in accordance with law without being influenced by any observation made by the High Court in the impugned orders. 20.
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15. In the instant case the appellants had not been arrested. It appears that the result of the investigation showed that no amount had been defalcated. We are here not concerned with the correctness of the conclusion that the investigating officer may have reached. What is, however, significant is that the investigating officer did not consider it necessary, having regard to all the facts and circumstances of the case, to arrest the accused. In such a case there was no justification for the High Court to direct the State to arrest the appellants against whom the first information report was lodged, as it amounted to unjustified interference in the investigation of the case. The mere fact that the bail applications of some of the appellants had been rejected is no ground for directing their immediate arrest. In the very nature of things, a person may move the Court on mere apprehension that he may be arrested. The Court may or may not grant anticipatory bail depending upon the facts and circumstances of the case and the material placed before the Court. There may, however, be cases where the application for grant of anticipatory bail may be rejected and ultimately, after investigation, the said person may not be put up for trial as no material is disclosed against him in the course of investigation. The High Court proceeded on the assumption that since petitions for anticipatory bail had been rejected, there was no option open for the State but to arrest those persons. This assumption, to our mind, is erroneous. A person whose petition for grant of anticipatory bail has been rejected may or may not be arrested by the investigating officer depending upon the facts and circumstances of the case, nature of the offence, the background of the accused, the facts disclosed in the course of investigation and other relevant considerations.16. We have, therefore, no doubt that the order dated 10th January, 2002, in so far as it directs the arrest of the appellants, must be set aside. So far as the order dated 11th January, 2002 is concerned, it gives an impression that the High Court has held that it was not open to the investigating officer, in view of the order passed by the High Court dated 7th September, 2001 rejecting the anticipatory bail petitions of some of the appellants, to treat the case as C summary as it has been found that no funds had been misappropriated. By the impugned order dated 16th January, 2002 the High Court has in fact shown its anxiety to see that the "State expeditiously conclude the investigation in the case and file charge-sheet". We are afraid, such a direction cannot be sustained in view of the settled principle of law on the subject.The principle, therefore, is well settled that it is for the investigating agency to submit a report to the Magistrate after full and complete investigation. The investigating agency may submit a report finding the allegations substantiated. It is also open to the investigating agency to submit a report finding no material to support the allegations made in the first information report. It is open to the Magistrate concerned to accept the report or to order further enquiry. But what is clear is that the Magistrate cannot direct the investigating agency to submit a report that is in accord with his views. Even in a case where a report is submitted by the investigating agency finding that no case is made out for prosecution, it is open to the Magistrate to dis-agree with the report and to take cognizance, but what he cannot do is to direct the investigating agency to submit a report to the effect that the allegations have been supported by the material collected during the course of investigation.18. In the instant case the investigation is in progress. It is not necessary for us to comment on the tentative view of the investigating agency. It is the statutory duty of the investigating agency to fully investigate the matter and then submit a report to the concerned Magistrate. The Magistrate will thereafter proceed to pass appropriate order in accordance with law. It was not appropriate for the High Court in these circumstance to issue a direction that the case should not only be investigated, but a charge sheet must be submitted. In our view the High Court exceeded its jurisdiction in making this direction which deserves to be set aside. While it is open to the High Court, in appropriate cases, to give directions for prompt investigation etc., the High Court cannot direct the investigating agency to submit a report that is in accord with its views as that would amount to unwarranted interference with the investigation of the case by inhibiting the exercise of statutory power by the investigating agency.19. In these circumstances, therefore, we set aside the direction contained in the order of the High Court dated 10th January, 2002 directing the arrest of the appellants. We also set aside the direction made by the High Court directing the investigating agency to submit a charge-sheet. However, the investigating agency must promptly take all necessary steps, conclude the investigation and submit its report to the concerned Magistrate. It is open to the investigating agency to submit such report as it considers appropriate, having regard to the facts and circumstances of the case and result of the investigation. after such a final report is submitted by the investigating agency, the concerned Magistrate will proceed to deal with the matter further in accordance with law without being influenced by any observation made by the High Court in the impugned orders.
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D. C. Roy Vs. The Presiding Officer, Madhya Pradesh Industrial Court,Indo | The observations extracted earlier from the judgment of a 3-Judge Bench in Hotel Imperials case (p. 487 of the Report), on which the appellant relied strongly prima facie support the appellants contention that if an inquiry is found to be defective, the employer can make good the defect by producing the necessary evidence before the Labour Court but that in such a case he will have to pay wages up to date of the decision of the Labour Court even if that decision went in his favour. The particular observations purport to summarize what was decided by the same Bench a fortnight earlier in Phubari Tea Estate v. Its Workmen(1). Learned counsel for the respondent took us closely through the judgment in Phulbari Tea Estate but we are unable to find anything in that judgment showing t hat whenever there is a defect in a Domestic inquiry, the employer would have to pay wages up to the date of the award of the Labour Court or the Industrial Tribunal even if the order passed in the Domestic inquiry was ultimately upheld by the Lab our Court or the Tribunal. In Phulbari Tea Estate (supra), the domestic inquiry was in gross violation of the fundamental principles of natural justice and was therefore vitiated. The employers did not lead proper evidence before the Tribunal to justify the order of dismissal and were content merely to produce before the Tribunal the statements which were recorded during the inquiry. The employee therefore had no opportunity to cross-examine the witnesses before the Tribunal. Since the inquiry was bad and the Tribunal had no evidence before it to sustain the order of dismissal it set aside that order but held that in the peculiar circumstances of the case, the employee may be granted the alternative relief of compensation instead of an order of reinstatement. The Tribunal accordingly granted to the employee pay and allowance from the date of his suspension till payment. The award of the Tribunal was upheld is appeal by this Court.It shall have been seen that in the case of Phulbari Tea Estate (supra) the employers made no attempt to make good the defect in the inquiry by producing necessary evidence before the Tribunal and by affording an opportunity to the employee to cross-examine their witnesses. "This left the matters where they were", as observed by Wanchoo J. who spoke on behalf of the Court, with the result that the Tribunal which found that the inquiry was vitiated had no evidence before it to examine the legality and propriety of the order of dismissal. In the instant case, the Domestic inquiry was held to be in violation of the principles of natural justice but the employer led evidence before the Labour Court in support of the order of dismissal and on a fresh appraisal of that evidence, the Labour Court found that the order of dismissal was justified. The ratio of P. H. Kalyanis case would therefore govern the case and the judgment of the Labour Court must relate back to the date on which the order of dismissal was passed.9. With great respect, the ratio of Phulbari Tea Estate is not stated correctly in the particular passage at page 487 of the Report in the case of Hotel Imperial. That passage is partly a reproduction in substance of w hat is said in Phulbari Tea Estate at page 38 of the Report but the last clause of the passage following the semi-colon is an addition not borne out by the judgment in Phulbari Tea Estate.10. Counsel for the appellant also relied on the decision of this Court in M/s. Sasa Musa Sugar Works (P) Ltd. v. Shobrati Khan &Ors.(1) but that case is clearly distinguishable. As pointed out by this Court in P. H. Kalyanis case, Sasa Musa was a case where an application had been made under section 33(1) of the Industrial Disputes Act for permission to dismiss the employees and such permission was asked for, though no inquiry whatsoever was held by the employer and no decision was taken that the employees be dismissed. The case for dismissal of the employees was made out for the first time in the proceedings under section 33(1) and it was for that reason that it was held that the employees were entitled to back wages until the decision of the application filed under section 33. Commenting on the decision in Sasa Musa, this Court observed in P. H. Kalyanis case that the matter would have been different if in Sasa Musa, an inquiry had been held, the employer had come to the conclusion that the dismissal was the proper punishment and had then applied under section 33(1) for permission to dismiss the employees. "In those circumstances the permission would have related back to the date when the employer came to the conclusion after an inquiry that dismissal was the proper punishment and had applied for removal of the ban by an application under section 33(1)." (page 113).The second contention must also therefore fail. We would, however, like to add that the decision in P. H. Kalyanis case is not to be construed as a charter for employers to dismiss employees after the pretence of an inquiry. The inquiry in the instant case does not suffer from defects so serious or fundamental as to make it non-est. On appropriate occasion, it may become necessary to carve an exception to the ratio of Kalyanis case so as to exclude from its operation at least that class of cases in which under the facade of a domestic inquiry, the employer passes an order gravely detrimental to the employees interest like an order of dismissal. An inquiry blatantly and consciously violating principles of natural justice may well be equated with the total absence of an inquiry so as to exclude the application of the relation-back doctrine. But we will not pursue the point beyond this as the facts before us do not warrant a closer consideration thereof.11. | 0[ds]Counsel for the appellant also relied on the decision of this Court in M/s. Sasa Musa Sugar Works (P) Ltd. v. Shobrati Khan &Ors.(1) but that case is clearly distinguishable. As pointed out by this Court in P. H. Kalyanis case, Sasa Musa was a case where an application had been made under section 33(1) of the Industrial Disputes Act for permission to dismiss the employees and such permission was asked for, though no inquiry whatsoever was held by the employer and no decision was taken that the employees be dismissed. The case for dismissal of the employees was made out for the first time in the proceedings under section 33(1) and it was for that reason that it was held that the employees were entitled to back wages until the decision of the application filed under section 33. Commenting on the decision in Sasa Musa, this Court observed in P. H. Kalyanis case that the matter would have been different if in Sasa Musa, an inquiry had been held, the employer had come to the conclusion that the dismissal was the proper punishment and had then applied under section 33(1) for permission to dismiss the employees. "In those circumstances the permission would have related back to the date when the employer came to the conclusion after an inquiry that dismissal was the proper punishment and had applied for removal of the ban by an application under section 33(1)." (page 113).The second contention must also therefore fail. We would, however, like to add that the decision in P. H. Kalyanis case is not to be construed as a charter for employers to dismiss employees after the pretence of an inquiry. The inquiry in the instant case does not suffer from defects so serious or fundamental as to make it non-est. On appropriate occasion, it may become necessary to carve an exception to the ratio of Kalyanis case so as to exclude from its operation at least that class of cases in which under the facade of a domestic inquiry, the employer passes an order gravely detrimental to the employees interest like an order of dismissal. An inquiry blatantly and consciously violating principles of natural justice may well be equated with the total absence of an inquiry so as to exclude the application of the relation-back doctrine. But we will not pursue the point beyond this as the facts before us do not warrant a closer consideration thereof. | 0 | 3,063 | 456 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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The observations extracted earlier from the judgment of a 3-Judge Bench in Hotel Imperials case (p. 487 of the Report), on which the appellant relied strongly prima facie support the appellants contention that if an inquiry is found to be defective, the employer can make good the defect by producing the necessary evidence before the Labour Court but that in such a case he will have to pay wages up to date of the decision of the Labour Court even if that decision went in his favour. The particular observations purport to summarize what was decided by the same Bench a fortnight earlier in Phubari Tea Estate v. Its Workmen(1). Learned counsel for the respondent took us closely through the judgment in Phulbari Tea Estate but we are unable to find anything in that judgment showing t hat whenever there is a defect in a Domestic inquiry, the employer would have to pay wages up to the date of the award of the Labour Court or the Industrial Tribunal even if the order passed in the Domestic inquiry was ultimately upheld by the Lab our Court or the Tribunal. In Phulbari Tea Estate (supra), the domestic inquiry was in gross violation of the fundamental principles of natural justice and was therefore vitiated. The employers did not lead proper evidence before the Tribunal to justify the order of dismissal and were content merely to produce before the Tribunal the statements which were recorded during the inquiry. The employee therefore had no opportunity to cross-examine the witnesses before the Tribunal. Since the inquiry was bad and the Tribunal had no evidence before it to sustain the order of dismissal it set aside that order but held that in the peculiar circumstances of the case, the employee may be granted the alternative relief of compensation instead of an order of reinstatement. The Tribunal accordingly granted to the employee pay and allowance from the date of his suspension till payment. The award of the Tribunal was upheld is appeal by this Court.It shall have been seen that in the case of Phulbari Tea Estate (supra) the employers made no attempt to make good the defect in the inquiry by producing necessary evidence before the Tribunal and by affording an opportunity to the employee to cross-examine their witnesses. "This left the matters where they were", as observed by Wanchoo J. who spoke on behalf of the Court, with the result that the Tribunal which found that the inquiry was vitiated had no evidence before it to examine the legality and propriety of the order of dismissal. In the instant case, the Domestic inquiry was held to be in violation of the principles of natural justice but the employer led evidence before the Labour Court in support of the order of dismissal and on a fresh appraisal of that evidence, the Labour Court found that the order of dismissal was justified. The ratio of P. H. Kalyanis case would therefore govern the case and the judgment of the Labour Court must relate back to the date on which the order of dismissal was passed.9. With great respect, the ratio of Phulbari Tea Estate is not stated correctly in the particular passage at page 487 of the Report in the case of Hotel Imperial. That passage is partly a reproduction in substance of w hat is said in Phulbari Tea Estate at page 38 of the Report but the last clause of the passage following the semi-colon is an addition not borne out by the judgment in Phulbari Tea Estate.10. Counsel for the appellant also relied on the decision of this Court in M/s. Sasa Musa Sugar Works (P) Ltd. v. Shobrati Khan &Ors.(1) but that case is clearly distinguishable. As pointed out by this Court in P. H. Kalyanis case, Sasa Musa was a case where an application had been made under section 33(1) of the Industrial Disputes Act for permission to dismiss the employees and such permission was asked for, though no inquiry whatsoever was held by the employer and no decision was taken that the employees be dismissed. The case for dismissal of the employees was made out for the first time in the proceedings under section 33(1) and it was for that reason that it was held that the employees were entitled to back wages until the decision of the application filed under section 33. Commenting on the decision in Sasa Musa, this Court observed in P. H. Kalyanis case that the matter would have been different if in Sasa Musa, an inquiry had been held, the employer had come to the conclusion that the dismissal was the proper punishment and had then applied under section 33(1) for permission to dismiss the employees. "In those circumstances the permission would have related back to the date when the employer came to the conclusion after an inquiry that dismissal was the proper punishment and had applied for removal of the ban by an application under section 33(1)." (page 113).The second contention must also therefore fail. We would, however, like to add that the decision in P. H. Kalyanis case is not to be construed as a charter for employers to dismiss employees after the pretence of an inquiry. The inquiry in the instant case does not suffer from defects so serious or fundamental as to make it non-est. On appropriate occasion, it may become necessary to carve an exception to the ratio of Kalyanis case so as to exclude from its operation at least that class of cases in which under the facade of a domestic inquiry, the employer passes an order gravely detrimental to the employees interest like an order of dismissal. An inquiry blatantly and consciously violating principles of natural justice may well be equated with the total absence of an inquiry so as to exclude the application of the relation-back doctrine. But we will not pursue the point beyond this as the facts before us do not warrant a closer consideration thereof.11.
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Counsel for the appellant also relied on the decision of this Court in M/s. Sasa Musa Sugar Works (P) Ltd. v. Shobrati Khan &Ors.(1) but that case is clearly distinguishable. As pointed out by this Court in P. H. Kalyanis case, Sasa Musa was a case where an application had been made under section 33(1) of the Industrial Disputes Act for permission to dismiss the employees and such permission was asked for, though no inquiry whatsoever was held by the employer and no decision was taken that the employees be dismissed. The case for dismissal of the employees was made out for the first time in the proceedings under section 33(1) and it was for that reason that it was held that the employees were entitled to back wages until the decision of the application filed under section 33. Commenting on the decision in Sasa Musa, this Court observed in P. H. Kalyanis case that the matter would have been different if in Sasa Musa, an inquiry had been held, the employer had come to the conclusion that the dismissal was the proper punishment and had then applied under section 33(1) for permission to dismiss the employees. "In those circumstances the permission would have related back to the date when the employer came to the conclusion after an inquiry that dismissal was the proper punishment and had applied for removal of the ban by an application under section 33(1)." (page 113).The second contention must also therefore fail. We would, however, like to add that the decision in P. H. Kalyanis case is not to be construed as a charter for employers to dismiss employees after the pretence of an inquiry. The inquiry in the instant case does not suffer from defects so serious or fundamental as to make it non-est. On appropriate occasion, it may become necessary to carve an exception to the ratio of Kalyanis case so as to exclude from its operation at least that class of cases in which under the facade of a domestic inquiry, the employer passes an order gravely detrimental to the employees interest like an order of dismissal. An inquiry blatantly and consciously violating principles of natural justice may well be equated with the total absence of an inquiry so as to exclude the application of the relation-back doctrine. But we will not pursue the point beyond this as the facts before us do not warrant a closer consideration thereof.
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New India Assurance Co. Ltd Vs. Vipin Behari Lal Srivastava | reference to your letter of 31st ultimo. You are aware that no leave is due & we cannot grant you any further leave even without pay. You are, therefore, required to join your duty immediately, failing which we shall presume that you are no more interested in the job & we shall also presume that you have abandoned the job.Thanking you,Yours faithfully,Sd/-Sr. Divisional Manager" 7. A bare look at it shows that there was no condonation of the absence without leave as held by the High Court. On the contrary, it was clearly indicated that no leave was due and even leave without pay cannot be granted. Therefore, direction was given to join back immediately failing which certain presumptions were to be drawn as noted above. 8. The case of the appellant was really not of abandonment but of an unauthorized absence. 9. The Rules governing "leave" read as follows "(1) General Principles Governing Grant of Leave:The following general principle shall govern the grant of leave to the employees:(a) Leave cannot be claimed as a matter of right.(b) Leave shall be availed of only after sanction by the competent authority, but one days casual leave may be availed of without prior sanction in case of unforeseen emergency, provided the head of the office is promptly advised of the circumstances under which prior sanction could not be obtained."(4) Sick Leave:(c) Sick Leave can be granted to an employee only on production of a medical certificate from a Registered Medical Practitioner, which term would include Homeopathic, Ayurvedic and Unani doctor also provided they are registered medical practitioners.(d) The certificate should state as clearly as possible the diagnosis and probable duration of treatment." 10. As noted above, sick leave can be granted only on the production of a medical certificate from a Registered Medical Practitioner clearly stating as far as possible the diagnosis and probable duration of treatment. There was no such indication in the certificates purported to have been furnished by the respondent. It is to be noted that the respondent even did not join after receipt of the letter dated 3.8.1994. The charges against the respondent, inter alia, were as follows: "(i) willful insubordination and disobedience of lawful and reasonable orders of his superiors(ii) absence without leave, without sufficient grounds or proper or satisfactory explanation(iii) absence from his appointed place of work without permission or sufficient cause" 11. In Viveka Nand Sethi Vs. Chairman, J&K Bank Ltd. & Ors. [(2005) 5 SCC 337] this Court, inter alia, observed as follows: "14. What fell for consideration before the Industrial Tribunal was the interpretation and/or applicability of the said settlement. The Industrial Tribunal committed an error of record insofar as it proceeded on the basis that the said settlement had not been proved. The settlement being an admitted document should have been considered in its proper perspective by the Industrial Tribunal. Clause (2) of the said settlement is a complete code by itself. It lays down a complete machinery as to how and in what manner the employer can arrive at a satisfaction that the workman has no intention to join his duties. A bare perusal of the said settlement clearly shows that it is for the employee concerned to submit a proper application for leave. It is not in dispute that after the period of leave came to an end in June 1983, the workman did not report back for duties. He also did not submit any application for grant of further leave on medical ground or otherwise. It is in that situation the memorandum dated 2.11.1983 was issued and he was asked to join his duties. It is furthermore not in dispute that despite receipt of the said memorandum, the workman did not join duties pursuant whereto he was served with a notice to show cause dated 31.12.1982. He was required to resume his duties by 15.1.1984. The Bank received a telegram on 17.1.1984 and only about a month thereafter he filed an application for grant of leave on medical ground. It is not the case of the workman that any leave on medical ground or otherwise was due to him. Opportunities after opportunities indisputably had been granted to the workman to explain his position but he chose not to do so except filing applications for grant of medical leave and that too without annexing proper medical certificates.18. Mere sending of an application for grant of leave much after the period of leave was over as also the date of resuming duties cannot be said to be a bona fide act on the part of the workman. The Bank, as noticed hereinbefore, in response to the lawyers notice categorically stated that the workman had been carrying on some business elsewhere.19. We cannot accept the submission of Mr. Mathur that only because on a later date an application for grant of medical leave was filed, the same ipso facto would put an embargo on the exercise of the jurisdiction of the Bank from invoking clause 2 of the bipartite settlement.20. It may be true that in a case of this nature, the principles of natural justice were required to be complied with the same would not mean that a full-fledged departmental proceeding was required to be initiated. A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do, in our considered view, amounts to sufficient compliance of the requirements of the principles of natural justice." 12. In view of the factual position, when tested on the touchstone of the principles of law and governing rules, the inevitable conclusion is that the impugned order of the High Court passed by the learned Single Judge dismissing the writ petition, i.e. C.W.P. No. 1720/1998, by order dated 20.1.2006 cannot be sustained and is set aside. The order passed by the departmental authorities directing removal of the respondent from service is maintained.13. | 1[ds]leave can be granted only on the production of a medical certificate from a Registered Medical Practitioner clearly stating as far as possible the diagnosis and probable duration of treatment. There was no such indication in the certificates purported to have been furnished by the respondent. It is to be noted that the respondent even did not join after receipt of the letter dated 3.8.1994. The charges against the respondent, inter alia, were aswillful insubordination and disobedience of lawful and reasonable orders of his superiors(ii) absence without leave, without sufficient grounds or proper or satisfactory explanation(iii) absence from his appointed place of work without permission or sufficientViveka Nand Sethi Vs. Chairman, J&K Bank Ltd. & Ors. [(2005) 5 SCC 337] this Court, inter alia, observed asWhat fell for consideration before the Industrial Tribunal was the interpretation and/or applicability of the said settlement. The Industrial Tribunal committed an error of record insofar as it proceeded on the basis that the said settlement had not been proved. The settlement being an admitted document should have been considered in its proper perspective by the Industrial Tribunal. Clause (2) of the said settlement is a complete code by itself. It lays down a complete machinery as to how and in what manner the employer can arrive at a satisfaction that the workman has no intention to join his duties. A bare perusal of the said settlement clearly shows that it is for the employee concerned to submit a proper application for leave. It is not in dispute that after the period of leave came to an end in June 1983, the workman did not report back for duties. He also did not submit any application for grant of further leave on medical ground or otherwise. It is in that situation the memorandum dated 2.11.1983 was issued and he was asked to join his duties. It is furthermore not in dispute that despite receipt of the said memorandum, the workman did not join duties pursuant whereto he was served with a notice to show cause dated 31.12.1982. He was required to resume his duties by 15.1.1984. The Bank received a telegram on 17.1.1984 and only about a month thereafter he filed an application for grant of leave on medical ground. It is not the case of the workman that any leave on medical ground or otherwise was due to him. Opportunities after opportunities indisputably had been granted to the workman to explain his position but he chose not to do so except filing applications for grant of medical leave and that too without annexing proper medicalsending of an application for grant of leave much after the period of leave was over as also the date of resuming duties cannot be said to be a bona fide act on the part of the workman. The Bank, as noticed hereinbefore, in response to the lawyers notice categorically stated that the workman had been carrying on some businesscannot accept the submission of Mr. Mathur that only because on a later date an application for grant of medical leave was filed, the same ipso facto would put an embargo on the exercise of the jurisdiction of the Bank from invoking clause 2 of the bipartitemay be true that in a case of this nature, the principles of natural justice were required to be complied with the same would not mean that a full-fledged departmental proceeding was required to be initiated. A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do, in our considered view, amounts to sufficient compliance of the requirements of the principles of naturalview of the factual position, when tested on the touchstone of the principles of law and governing rules, the inevitable conclusion is that the impugned order of the High Court passed by the learned Single Judge dismissing the writ petition, i.e. C.W.P. No. 1720/1998, by order dated 20.1.2006 cannot be sustained and is set aside. The order passed by the departmental authorities directing removal of the respondent from service is maintained. | 1 | 2,007 | 754 | ### 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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reference to your letter of 31st ultimo. You are aware that no leave is due & we cannot grant you any further leave even without pay. You are, therefore, required to join your duty immediately, failing which we shall presume that you are no more interested in the job & we shall also presume that you have abandoned the job.Thanking you,Yours faithfully,Sd/-Sr. Divisional Manager" 7. A bare look at it shows that there was no condonation of the absence without leave as held by the High Court. On the contrary, it was clearly indicated that no leave was due and even leave without pay cannot be granted. Therefore, direction was given to join back immediately failing which certain presumptions were to be drawn as noted above. 8. The case of the appellant was really not of abandonment but of an unauthorized absence. 9. The Rules governing "leave" read as follows "(1) General Principles Governing Grant of Leave:The following general principle shall govern the grant of leave to the employees:(a) Leave cannot be claimed as a matter of right.(b) Leave shall be availed of only after sanction by the competent authority, but one days casual leave may be availed of without prior sanction in case of unforeseen emergency, provided the head of the office is promptly advised of the circumstances under which prior sanction could not be obtained."(4) Sick Leave:(c) Sick Leave can be granted to an employee only on production of a medical certificate from a Registered Medical Practitioner, which term would include Homeopathic, Ayurvedic and Unani doctor also provided they are registered medical practitioners.(d) The certificate should state as clearly as possible the diagnosis and probable duration of treatment." 10. As noted above, sick leave can be granted only on the production of a medical certificate from a Registered Medical Practitioner clearly stating as far as possible the diagnosis and probable duration of treatment. There was no such indication in the certificates purported to have been furnished by the respondent. It is to be noted that the respondent even did not join after receipt of the letter dated 3.8.1994. The charges against the respondent, inter alia, were as follows: "(i) willful insubordination and disobedience of lawful and reasonable orders of his superiors(ii) absence without leave, without sufficient grounds or proper or satisfactory explanation(iii) absence from his appointed place of work without permission or sufficient cause" 11. In Viveka Nand Sethi Vs. Chairman, J&K Bank Ltd. & Ors. [(2005) 5 SCC 337] this Court, inter alia, observed as follows: "14. What fell for consideration before the Industrial Tribunal was the interpretation and/or applicability of the said settlement. The Industrial Tribunal committed an error of record insofar as it proceeded on the basis that the said settlement had not been proved. The settlement being an admitted document should have been considered in its proper perspective by the Industrial Tribunal. Clause (2) of the said settlement is a complete code by itself. It lays down a complete machinery as to how and in what manner the employer can arrive at a satisfaction that the workman has no intention to join his duties. A bare perusal of the said settlement clearly shows that it is for the employee concerned to submit a proper application for leave. It is not in dispute that after the period of leave came to an end in June 1983, the workman did not report back for duties. He also did not submit any application for grant of further leave on medical ground or otherwise. It is in that situation the memorandum dated 2.11.1983 was issued and he was asked to join his duties. It is furthermore not in dispute that despite receipt of the said memorandum, the workman did not join duties pursuant whereto he was served with a notice to show cause dated 31.12.1982. He was required to resume his duties by 15.1.1984. The Bank received a telegram on 17.1.1984 and only about a month thereafter he filed an application for grant of leave on medical ground. It is not the case of the workman that any leave on medical ground or otherwise was due to him. Opportunities after opportunities indisputably had been granted to the workman to explain his position but he chose not to do so except filing applications for grant of medical leave and that too without annexing proper medical certificates.18. Mere sending of an application for grant of leave much after the period of leave was over as also the date of resuming duties cannot be said to be a bona fide act on the part of the workman. The Bank, as noticed hereinbefore, in response to the lawyers notice categorically stated that the workman had been carrying on some business elsewhere.19. We cannot accept the submission of Mr. Mathur that only because on a later date an application for grant of medical leave was filed, the same ipso facto would put an embargo on the exercise of the jurisdiction of the Bank from invoking clause 2 of the bipartite settlement.20. It may be true that in a case of this nature, the principles of natural justice were required to be complied with the same would not mean that a full-fledged departmental proceeding was required to be initiated. A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do, in our considered view, amounts to sufficient compliance of the requirements of the principles of natural justice." 12. In view of the factual position, when tested on the touchstone of the principles of law and governing rules, the inevitable conclusion is that the impugned order of the High Court passed by the learned Single Judge dismissing the writ petition, i.e. C.W.P. No. 1720/1998, by order dated 20.1.2006 cannot be sustained and is set aside. The order passed by the departmental authorities directing removal of the respondent from service is maintained.13.
### Response:
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### Explanation:
leave can be granted only on the production of a medical certificate from a Registered Medical Practitioner clearly stating as far as possible the diagnosis and probable duration of treatment. There was no such indication in the certificates purported to have been furnished by the respondent. It is to be noted that the respondent even did not join after receipt of the letter dated 3.8.1994. The charges against the respondent, inter alia, were aswillful insubordination and disobedience of lawful and reasonable orders of his superiors(ii) absence without leave, without sufficient grounds or proper or satisfactory explanation(iii) absence from his appointed place of work without permission or sufficientViveka Nand Sethi Vs. Chairman, J&K Bank Ltd. & Ors. [(2005) 5 SCC 337] this Court, inter alia, observed asWhat fell for consideration before the Industrial Tribunal was the interpretation and/or applicability of the said settlement. The Industrial Tribunal committed an error of record insofar as it proceeded on the basis that the said settlement had not been proved. The settlement being an admitted document should have been considered in its proper perspective by the Industrial Tribunal. Clause (2) of the said settlement is a complete code by itself. It lays down a complete machinery as to how and in what manner the employer can arrive at a satisfaction that the workman has no intention to join his duties. A bare perusal of the said settlement clearly shows that it is for the employee concerned to submit a proper application for leave. It is not in dispute that after the period of leave came to an end in June 1983, the workman did not report back for duties. He also did not submit any application for grant of further leave on medical ground or otherwise. It is in that situation the memorandum dated 2.11.1983 was issued and he was asked to join his duties. It is furthermore not in dispute that despite receipt of the said memorandum, the workman did not join duties pursuant whereto he was served with a notice to show cause dated 31.12.1982. He was required to resume his duties by 15.1.1984. The Bank received a telegram on 17.1.1984 and only about a month thereafter he filed an application for grant of leave on medical ground. It is not the case of the workman that any leave on medical ground or otherwise was due to him. Opportunities after opportunities indisputably had been granted to the workman to explain his position but he chose not to do so except filing applications for grant of medical leave and that too without annexing proper medicalsending of an application for grant of leave much after the period of leave was over as also the date of resuming duties cannot be said to be a bona fide act on the part of the workman. The Bank, as noticed hereinbefore, in response to the lawyers notice categorically stated that the workman had been carrying on some businesscannot accept the submission of Mr. Mathur that only because on a later date an application for grant of medical leave was filed, the same ipso facto would put an embargo on the exercise of the jurisdiction of the Bank from invoking clause 2 of the bipartitemay be true that in a case of this nature, the principles of natural justice were required to be complied with the same would not mean that a full-fledged departmental proceeding was required to be initiated. A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do, in our considered view, amounts to sufficient compliance of the requirements of the principles of naturalview of the factual position, when tested on the touchstone of the principles of law and governing rules, the inevitable conclusion is that the impugned order of the High Court passed by the learned Single Judge dismissing the writ petition, i.e. C.W.P. No. 1720/1998, by order dated 20.1.2006 cannot be sustained and is set aside. The order passed by the departmental authorities directing removal of the respondent from service is maintained.
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Kale rep. thr. L.Rs Vs. Union of India | Abhay Manohar Sapre, J.1. This appeal is filed against the final judgment and order dated 27.04.2004 passed by the High Court of Delhi at New Delhi in Civil Revision Petition No. 794 of 1990 whereby the High Court dismissed the revision petition filed by the appellant herein against the order dated 18.04.1990 of the Additional District Judge in Reference proceedings under Section 18 of the Land Acquisition Act (in short, "the Act").2. Facts of the case lie in a narrow compass. They, however, need mention infra.3. The short dispute, which is carried upto this Court by the landowners is how much of their land was acquired by the State in the land acquisition proceedings and how much compensation was paid to them.4. According to the appellants (landowners), the State acquired total 45 Bigha 3 Biswas of appellants land situated in Gajipur (Delhi) pursuant to the Notification issued under Section 4 of the Act on 13.11.1958 followed by Notification under Section 6 on 20.06.1966 but the appellants were paid compensation only for land measuring 36 Bigha 12 Biswas.5. Therefore, the grievance of the appellants in these proceedings is that they are entitled to claim compensation for 45 Bigha and 3 Biswas of the land, which according to them, was acquired in the land acquisition proceedings. It is contended that since the appellants were paid compensation only for 36 Bigha 12 Biswas of land and hence direction be issued to the State to pay compensation to the appellants for the balanced land, i.e., 9 Bigha. This, in substance, is the grievance.6. The Reference Court by order dated 18.04.1990 rejected the appellants claim and the High Court upheld the order of the Reference Court by the impugned order and dismissed the appellants revision which has given rise to filing of this appeal by way of special leave by the landowners.7. Having heard learned counsel for the parties and on perusal of the record of the case, we find no merit in the appeal.8. We have perused the record, the order of the Reference Court and the impugned order and find no fault therein. The Reference Court so also the High Court after examining the entire record of the case recorded a categorical finding that the total land, which was acquired pursuant to the aforementioned Notification, was 36 Bigha 12 Biswas and not 45 Bigha 3 Biswas as contended by the appellants. It was held and rightly that the appellants were accordingly paid compensation for 36 Bigha 12 Biswas.9. We agree with the view taken by the High Court because we also find that the appellants were not able to file any document to prove in support of their case that the State had acquired land measuring 45 Bigha 3 Biswas. On the other hand, we find that it was proved from the records that the land measuring 36 Bigha 12 Biswas was acquired and accordingly compensation was paid by the State for 36 Bigha 12 Biswas to the appellants.10. Though learned counsel for the appellants (landowners) made attempt to contend by reiterating the same submission which was unsuccessfully urged before the two Courts, namely, what was acquired by the State was the extent of land measuring 45 Bigha 12 Biswas, we are afraid we can accept this submission for want of any documentary evidence filed by the appellants.11. As mentioned above, the Government records relating to the case at hand also mention at all places that the land measuring 36 Bigha 3 Biswas was acquired by the State. In reference proceedings, it was noticed that due to typographical mistake, in place of figure "36", "26" was typed in the order of reference. This was later corrected at the instance of the appellants and in place of figure "26", the figure "36" was typed. At that time also the question as to how much land was acquired was examined and it was found that only 36 Bigha 3 Biswas of land was acquired. It is not in dispute that the appellants have received the compensation for the land acquired, i.e., 36 Bigha 3 Biswas. | 0[ds]8. We have perused the record, the order of the Reference Court and the impugned order and find no fault therein. The Reference Court so also the High Court after examining the entire record of the case recorded a categorical finding that the total land, which was acquired pursuant to the aforementioned Notification, was 36 Bigha 12 Biswas and not 45 Bigha 3 Biswas as contended by the appellants. It was held and rightly that the appellants were accordingly paid compensation for 36 Bigha 12 Biswas.9. We agree with the view taken by the High Court because we also find that the appellants were not able to file any document to prove in support of their case that the State had acquired land measuring 45 Bigha 3 Biswas. On the other hand, we find that it was proved from the records that the land measuring 36 Bigha 12 Biswas was acquired and accordingly compensation was paid by the State for 36 Bigha 12 Biswas to the appellants.10. Though learned counsel for the appellants (landowners) made attempt to contend by reiterating the same submission which was unsuccessfully urged before the two Courts, namely, what was acquired by the State was the extent of land measuring 45 Bigha 12 Biswas, we are afraid we can accept this submission for want of any documentary evidence filed by the appellants.11. As mentioned above, the Government records relating to the case at hand also mention at all places that the land measuring 36 Bigha 3 Biswas was acquired by the State. In reference proceedings, it was noticed that due to typographical mistake, in place of figure "36", "26" was typed in the order of reference. This was later corrected at the instance of the appellants and in place of figure "26", the figure "36" was typed. At that time also the question as to how much land was acquired was examined and it was found that only 36 Bigha 3 Biswas of land was acquired. It is not in dispute that the appellants have received the compensation for the land acquired, i.e., 36 Bigha 3 Biswas. | 0 | 750 | 391 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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Abhay Manohar Sapre, J.1. This appeal is filed against the final judgment and order dated 27.04.2004 passed by the High Court of Delhi at New Delhi in Civil Revision Petition No. 794 of 1990 whereby the High Court dismissed the revision petition filed by the appellant herein against the order dated 18.04.1990 of the Additional District Judge in Reference proceedings under Section 18 of the Land Acquisition Act (in short, "the Act").2. Facts of the case lie in a narrow compass. They, however, need mention infra.3. The short dispute, which is carried upto this Court by the landowners is how much of their land was acquired by the State in the land acquisition proceedings and how much compensation was paid to them.4. According to the appellants (landowners), the State acquired total 45 Bigha 3 Biswas of appellants land situated in Gajipur (Delhi) pursuant to the Notification issued under Section 4 of the Act on 13.11.1958 followed by Notification under Section 6 on 20.06.1966 but the appellants were paid compensation only for land measuring 36 Bigha 12 Biswas.5. Therefore, the grievance of the appellants in these proceedings is that they are entitled to claim compensation for 45 Bigha and 3 Biswas of the land, which according to them, was acquired in the land acquisition proceedings. It is contended that since the appellants were paid compensation only for 36 Bigha 12 Biswas of land and hence direction be issued to the State to pay compensation to the appellants for the balanced land, i.e., 9 Bigha. This, in substance, is the grievance.6. The Reference Court by order dated 18.04.1990 rejected the appellants claim and the High Court upheld the order of the Reference Court by the impugned order and dismissed the appellants revision which has given rise to filing of this appeal by way of special leave by the landowners.7. Having heard learned counsel for the parties and on perusal of the record of the case, we find no merit in the appeal.8. We have perused the record, the order of the Reference Court and the impugned order and find no fault therein. The Reference Court so also the High Court after examining the entire record of the case recorded a categorical finding that the total land, which was acquired pursuant to the aforementioned Notification, was 36 Bigha 12 Biswas and not 45 Bigha 3 Biswas as contended by the appellants. It was held and rightly that the appellants were accordingly paid compensation for 36 Bigha 12 Biswas.9. We agree with the view taken by the High Court because we also find that the appellants were not able to file any document to prove in support of their case that the State had acquired land measuring 45 Bigha 3 Biswas. On the other hand, we find that it was proved from the records that the land measuring 36 Bigha 12 Biswas was acquired and accordingly compensation was paid by the State for 36 Bigha 12 Biswas to the appellants.10. Though learned counsel for the appellants (landowners) made attempt to contend by reiterating the same submission which was unsuccessfully urged before the two Courts, namely, what was acquired by the State was the extent of land measuring 45 Bigha 12 Biswas, we are afraid we can accept this submission for want of any documentary evidence filed by the appellants.11. As mentioned above, the Government records relating to the case at hand also mention at all places that the land measuring 36 Bigha 3 Biswas was acquired by the State. In reference proceedings, it was noticed that due to typographical mistake, in place of figure "36", "26" was typed in the order of reference. This was later corrected at the instance of the appellants and in place of figure "26", the figure "36" was typed. At that time also the question as to how much land was acquired was examined and it was found that only 36 Bigha 3 Biswas of land was acquired. It is not in dispute that the appellants have received the compensation for the land acquired, i.e., 36 Bigha 3 Biswas.
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0
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8. We have perused the record, the order of the Reference Court and the impugned order and find no fault therein. The Reference Court so also the High Court after examining the entire record of the case recorded a categorical finding that the total land, which was acquired pursuant to the aforementioned Notification, was 36 Bigha 12 Biswas and not 45 Bigha 3 Biswas as contended by the appellants. It was held and rightly that the appellants were accordingly paid compensation for 36 Bigha 12 Biswas.9. We agree with the view taken by the High Court because we also find that the appellants were not able to file any document to prove in support of their case that the State had acquired land measuring 45 Bigha 3 Biswas. On the other hand, we find that it was proved from the records that the land measuring 36 Bigha 12 Biswas was acquired and accordingly compensation was paid by the State for 36 Bigha 12 Biswas to the appellants.10. Though learned counsel for the appellants (landowners) made attempt to contend by reiterating the same submission which was unsuccessfully urged before the two Courts, namely, what was acquired by the State was the extent of land measuring 45 Bigha 12 Biswas, we are afraid we can accept this submission for want of any documentary evidence filed by the appellants.11. As mentioned above, the Government records relating to the case at hand also mention at all places that the land measuring 36 Bigha 3 Biswas was acquired by the State. In reference proceedings, it was noticed that due to typographical mistake, in place of figure "36", "26" was typed in the order of reference. This was later corrected at the instance of the appellants and in place of figure "26", the figure "36" was typed. At that time also the question as to how much land was acquired was examined and it was found that only 36 Bigha 3 Biswas of land was acquired. It is not in dispute that the appellants have received the compensation for the land acquired, i.e., 36 Bigha 3 Biswas.
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Binani Bros. (P). Ltd Vs. Union Of India & Ors | the Coffee Board to the export promoter, and the second sale by the export promoter to a foreign buyer which occasioned the movement of goods and that the latter sale alone could earn the exemption from sales tax as being a sale in the course of export. 13. In Khosla case, (1966) 3 SCR 352 = (AIR 1966 SC 1216 ), it might be recalled that Khosla and Co. entered into the contract of sale with the DGS and D for the supply of axle bodies manufactured by its principal in Belgium and the goods were to be inspected by the buyer in Belgium but under the contract of sale the goods were liable to be rejected after a further inspection by the buyer in India. It was in pursuance to this contract that the goods were imported into the country and supplied to the buyer at Perambur and Mysore. From the statement of facts of the case as given in the judgment of the High Court it is not clear that there was a sale by the manufacturers in Belgium to Khosla and Co., their agent in India. It would seem that the only sale was the sale by Khosla and Co. as agent of the manufacturer in Belgium. In the concluding portion of the judgment of the Court, it was observed as follows : ".... It seems to us that it is quite clear from the contract that it was incidental to the contract that the axle-bodies would be manufactured in Belgium, inspected there and imported into India for the consignee. Movement of goods from Belgium to India was in pursuance of the conditions of the contract between the assessee and the Director-General of Supplies. There was no possibility of these goods being diverted by the assessee for any other purpose. Consequently we hold that the sale took place in the course of import of goods within Section 5(2) of the Act, and are, therefore, exempt from taxation." As already stated, there was to be an inspection of the goods in Belgium by the representative of the DGS and D but there was no completed sale in Belgium as, under the contract, the DGS and D reserved a further right of inspection of the goods on their arrival in India. 14. Be that as it may, in the case under consideration we are concerned with the sales made by the petitioner as principal to the DGS and D. No doubt for effecting these sales, the petitioner had to purchase goods from foreign sellers and it was these purchases from the foreign sellers which occasioned the movement of goods in the course of import. In other words, the movement of goods was occasioned by the contracts for purchase which the petitioner entered into with the foreign sellers. No movement of goods in the course of import took place in pursuance to the contracts of sale made by the petitioner with the DGS and D. The petitioners sales to DGS and D were distinct and separate from his purchases from foreign sellers. To put it differently, the sales by the petitioner to the DGS and D did not occasion the import. It was purchases made by the petitioner from the foreign sellers which occasioned the import of the goods. The purchases of the goods and import of the goods in pursuance to the contracts of purchases were, no doubt, for sale to the DGS and D. But it would not follow that the sales or contracts of sales to DGS and D occasioned the movement of the goods into this country. There was no privity of contract between DGS and D and the foreign sellers. The foreign sellers did not enter into any contract by themselves or through the agency of the petitioner to the DGS and D and the movement of goods from the foreign countries was not occasioned on account of the sales by the petitioner to DGS and D. 15. It was contended on behalf of the Central Government that the contracts of sale between the petitioner and the DGS and D envisaged the import of goods for fulfilling the contracts and it was for that reason that there was first the recommendation for issue of import licences by DGS and D and then the actual issue of import licences and, as the contracts of sale visualised the import of goods for fulfilling them, the movement of goods in the course of import was occasioned by the contracts of sale to the DGS and D and, therefore, the sales to the DGS and D were the sales which occasioned the movement of goods in the course of import. 16. There was no obligation under the contracts on the part of the DGS and D to procure import licences for the petitioner. On the other hand, the recommendation for import licence made by DGS and D did not carry with it any imperative obligation upon the Chief Controller of Imports and Exports to issue the import licence. Though under the contract DGS and D undertook to provide all facilities for the import of the goods for fulfilling the contracts including an Import Recommendation Certificate, there was no absolute obligation on the DGS and D to procure these facilities. And, it was the obligation of the petitioner to obtain the import licence. Therefore, even if the contracts envisaged the import of goods and their supply to the DGS and D from out of the goods imported it did not follow that the movement of the goods in the course of import was occasioned by the contracts of sale by the petitioner with DGS and D. 17. We see no reason in principle to distinguish this case from the decision in the Coffee Board case, (1970) 3 SCR 147 = (AIR 1971 SC 870 = 1971 Tax LR 391) though that case was concerned with the question when a sale occasions the movement of goods in the course of export. | 1[ds]11. In the Khosla case, (1966) 3 SCR 352 = (AIR 1966 SC 1216 ), the assessee entered into a contract with the DGS and D, New Delhi, for the supply of axle-box bodies. The goods were to be manufactured in Belgium according to specifications and the DGI SD, London or his representative had to inspect the goods as the works of the manufacturers and issue an inspections certificate. Another inspection was provided for at Madras. The assessee was entitled to be paid 90 per cent. after inspection and delivery of the stores to the consignee and the balance of 10 per cent was payable on final acceptance by the consignee. In the case of deliveries on f.o.r. basis the assessee was entitled to 90 per cent, payment after inspection on proof of despatch and balance of 10 per cent after receipt of stores by the consignee in good condition. The assessee was entirely responsible for the execution of the contract and for the safe arrival of the goods as the destination. The contract provided that notwithstanding any approval or acceptance given by an Inspector, the consignee was found that the goods were not in conformity with the terms and conditions of the contract in all respects. The manufacturers consigned the goods to the assessee by ship under bills of lading and the goods were cleared at the Madras Harbour by the Assessees Clearing Agents and despatched for delivery to the Southern Railway in Madras and Mysore, the question was whether the sales by the assessee to the Government departments were in the course of import and exempt from taxation under Section 5(2) of the Central Sales Tax Act, 1956 Sikri, J. (as he then was), delivering the judgment of the Court said after referring to S. 5(2) of the Central Sales Tax Act that the movement of goods to India was occasioned by the contract of sale between the appellant (Khosla and Co.) and the DGS and D, that if the movement of goods is the result of a covenant or incidental to the contract of sale, it is quite immaterial that the actual sale took place after the import was over12. In Coffee Board v. Joint Commercial Tax Officer, (1970) 3 SCR 147 = (AIR 1971 SC 870 = 1971 Tax LR 391), hereinafter referred to as Coffee Board Case, the Coffee Board claimed that as certain sales of coffee to registered exporters in March and April, 1963 were sales made in the course of export, it could not be taxed under the Madras General Sales Tax Act, 1959. The rules framed by the Coffee Board provided that any dealers who had registered themselves as exporters of coffee with the Coffee Board or their agents and who held permits from the Chief Coffee Marketing Officer in that behalf would be permitted to participate in the auctions, and after the bidding comes to an end, the payment of price would take place in a particular way. Condition No. 26 headed "export guarantee" provided that it was an essential condition of the auction that the coffee sold thereat shall be exported to the destination stipulated in the Catalogue of lots, or to any other foreign country outside India as may be approved by the Chief Coffee Marketing Officer, within three months from the date of Notice of Tender issued by the Agent and that it shall not under any circumstances be diverted to another destination, sold, or be disposed of, or otherwise released in India. Condition 30 stated that if the buyer failed or neglected to export the coffee as aforesaid within the prescribed time or within the period of extension, if any granted to him, he shall be liable to pay a penalty calculated at Rs. 50 per 50 kilos which shall be deductible from out of the amount payable to him as per Condition 31. And Condition 31 provided that on default by the buyer to export the coffee aforesaid within the prescribed time or such extension thereof as may be granted, it shall be lawful for the Chief Coffee Marketing Officer, without reference to the buyer, to seize the unexported coffee and take possession of the same and deal with it as if it were part and parcel of Boards coffee held by them in their Pool stock. The case of the petitioners before this Court was that the purchase at the export auctions were really sales by the Coffee Board in the course of export of coffee out of territory of India since the sales themselves occasioned the export of coffee and that the coffee so sold was not intended for use in India or for sale in the India markets. The case of the Sales Tax Authorities, on the other hand, was that these sales were not inextricably bound up with export of coffee and that the sales must therefore be treated as sales taking place within the State of Tamil Nadu liable of sales tax under the Madras General Sales Tax Act. This Court held that the Board was not entitled to the exemption claimed. The Court said that the phrase sale in the course of export comprises three essentials, namely, that there must be a sale, that goods must actually be exported and that the sale must be a part and parcel of the export. The Court further said that the sale must occasion the export and that the word occasion is used as a verb and means to cause or to be the immediate cause of. The Court was of the view that the sale which is to be regarded as exempt from tax is a sale which causes the export to take place or is the immediate cause of the export that the introduction of an intermediary between the seller and the importing buyer breaks the link, for, then there are two sales, one to the intermediary and the other to the importer, and that the first sale is not in the course of export, for the export begins from the intermediary and ends with the importer. According to the Court the test was that there must be a single sale which itself causes the export and that there is no room for two or more sales in the course of export. The Court, therefore, held that though the sales by the Coffee Board were sales for export, they were not sales in the course of export that there was two independent sales involved in the export programme; the first sale by the Coffee Board to the export promoter, and the second sale by the export promoter to a foreign buyer which occasioned the movement of goods and that the latter sale alone could earn the exemption from sales tax as being a sale in the course of export13. In Khosla case, (1966) 3 SCR 352 = (AIR 1966 SC 1216 ), it might be recalled that Khosla and Co. entered into the contract of sale with the DGS and D for the supply of axle bodies manufactured by its principal in Belgium and the goods were to be inspected by the buyer in Belgium but under the contract of sale the goods were liable to be rejected after a further inspection by the buyer in India. It was in pursuance to this contract that the goods were imported into the country and supplied to the buyer at Perambur and Mysore. From the statement of facts of the case as given in the judgment of the High Court it is not clear that there was a sale by the manufacturers in Belgium to Khosla and Co., their agent in India. It would seem that the only sale was the sale by Khosla and Co. as agent of the manufacturer in Belgium.16. There was no obligation under the contracts on the part of the DGS and D to procure import licences for the petitioner. On the other hand, the recommendation for import licence made by DGS and D did not carry with it any imperative obligation upon the Chief Controller of Imports and Exports to issue the import licence. Though under the contract DGS and D undertook to provide all facilities for the import of the goods for fulfilling the contracts including an Import Recommendation Certificate, there was no absolute obligation on the DGS and D to procure these facilities. And, it was the obligation of the petitioner to obtain the import licence. Therefore, even if the contracts envisaged the import of goods and their supply to the DGS and D from out of the goods imported it did not follow that the movement of the goods in the course of import was occasioned by the contracts of sale by the petitioner with DGS and D17. We see no reason in principle to distinguish this case from the decision in the Coffee Board case, (1970) 3 SCR 147 = (AIR 1971 SC 870 = 1971 Tax LR 391) though that case was concerned with the question when a sale occasions the movement of goods in the course of export | 1 | 4,398 | 1,637 | ### 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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the Coffee Board to the export promoter, and the second sale by the export promoter to a foreign buyer which occasioned the movement of goods and that the latter sale alone could earn the exemption from sales tax as being a sale in the course of export. 13. In Khosla case, (1966) 3 SCR 352 = (AIR 1966 SC 1216 ), it might be recalled that Khosla and Co. entered into the contract of sale with the DGS and D for the supply of axle bodies manufactured by its principal in Belgium and the goods were to be inspected by the buyer in Belgium but under the contract of sale the goods were liable to be rejected after a further inspection by the buyer in India. It was in pursuance to this contract that the goods were imported into the country and supplied to the buyer at Perambur and Mysore. From the statement of facts of the case as given in the judgment of the High Court it is not clear that there was a sale by the manufacturers in Belgium to Khosla and Co., their agent in India. It would seem that the only sale was the sale by Khosla and Co. as agent of the manufacturer in Belgium. In the concluding portion of the judgment of the Court, it was observed as follows : ".... It seems to us that it is quite clear from the contract that it was incidental to the contract that the axle-bodies would be manufactured in Belgium, inspected there and imported into India for the consignee. Movement of goods from Belgium to India was in pursuance of the conditions of the contract between the assessee and the Director-General of Supplies. There was no possibility of these goods being diverted by the assessee for any other purpose. Consequently we hold that the sale took place in the course of import of goods within Section 5(2) of the Act, and are, therefore, exempt from taxation." As already stated, there was to be an inspection of the goods in Belgium by the representative of the DGS and D but there was no completed sale in Belgium as, under the contract, the DGS and D reserved a further right of inspection of the goods on their arrival in India. 14. Be that as it may, in the case under consideration we are concerned with the sales made by the petitioner as principal to the DGS and D. No doubt for effecting these sales, the petitioner had to purchase goods from foreign sellers and it was these purchases from the foreign sellers which occasioned the movement of goods in the course of import. In other words, the movement of goods was occasioned by the contracts for purchase which the petitioner entered into with the foreign sellers. No movement of goods in the course of import took place in pursuance to the contracts of sale made by the petitioner with the DGS and D. The petitioners sales to DGS and D were distinct and separate from his purchases from foreign sellers. To put it differently, the sales by the petitioner to the DGS and D did not occasion the import. It was purchases made by the petitioner from the foreign sellers which occasioned the import of the goods. The purchases of the goods and import of the goods in pursuance to the contracts of purchases were, no doubt, for sale to the DGS and D. But it would not follow that the sales or contracts of sales to DGS and D occasioned the movement of the goods into this country. There was no privity of contract between DGS and D and the foreign sellers. The foreign sellers did not enter into any contract by themselves or through the agency of the petitioner to the DGS and D and the movement of goods from the foreign countries was not occasioned on account of the sales by the petitioner to DGS and D. 15. It was contended on behalf of the Central Government that the contracts of sale between the petitioner and the DGS and D envisaged the import of goods for fulfilling the contracts and it was for that reason that there was first the recommendation for issue of import licences by DGS and D and then the actual issue of import licences and, as the contracts of sale visualised the import of goods for fulfilling them, the movement of goods in the course of import was occasioned by the contracts of sale to the DGS and D and, therefore, the sales to the DGS and D were the sales which occasioned the movement of goods in the course of import. 16. There was no obligation under the contracts on the part of the DGS and D to procure import licences for the petitioner. On the other hand, the recommendation for import licence made by DGS and D did not carry with it any imperative obligation upon the Chief Controller of Imports and Exports to issue the import licence. Though under the contract DGS and D undertook to provide all facilities for the import of the goods for fulfilling the contracts including an Import Recommendation Certificate, there was no absolute obligation on the DGS and D to procure these facilities. And, it was the obligation of the petitioner to obtain the import licence. Therefore, even if the contracts envisaged the import of goods and their supply to the DGS and D from out of the goods imported it did not follow that the movement of the goods in the course of import was occasioned by the contracts of sale by the petitioner with DGS and D. 17. We see no reason in principle to distinguish this case from the decision in the Coffee Board case, (1970) 3 SCR 147 = (AIR 1971 SC 870 = 1971 Tax LR 391) though that case was concerned with the question when a sale occasions the movement of goods in the course of export.
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stipulated in the Catalogue of lots, or to any other foreign country outside India as may be approved by the Chief Coffee Marketing Officer, within three months from the date of Notice of Tender issued by the Agent and that it shall not under any circumstances be diverted to another destination, sold, or be disposed of, or otherwise released in India. Condition 30 stated that if the buyer failed or neglected to export the coffee as aforesaid within the prescribed time or within the period of extension, if any granted to him, he shall be liable to pay a penalty calculated at Rs. 50 per 50 kilos which shall be deductible from out of the amount payable to him as per Condition 31. And Condition 31 provided that on default by the buyer to export the coffee aforesaid within the prescribed time or such extension thereof as may be granted, it shall be lawful for the Chief Coffee Marketing Officer, without reference to the buyer, to seize the unexported coffee and take possession of the same and deal with it as if it were part and parcel of Boards coffee held by them in their Pool stock. The case of the petitioners before this Court was that the purchase at the export auctions were really sales by the Coffee Board in the course of export of coffee out of territory of India since the sales themselves occasioned the export of coffee and that the coffee so sold was not intended for use in India or for sale in the India markets. The case of the Sales Tax Authorities, on the other hand, was that these sales were not inextricably bound up with export of coffee and that the sales must therefore be treated as sales taking place within the State of Tamil Nadu liable of sales tax under the Madras General Sales Tax Act. This Court held that the Board was not entitled to the exemption claimed. The Court said that the phrase sale in the course of export comprises three essentials, namely, that there must be a sale, that goods must actually be exported and that the sale must be a part and parcel of the export. The Court further said that the sale must occasion the export and that the word occasion is used as a verb and means to cause or to be the immediate cause of. The Court was of the view that the sale which is to be regarded as exempt from tax is a sale which causes the export to take place or is the immediate cause of the export that the introduction of an intermediary between the seller and the importing buyer breaks the link, for, then there are two sales, one to the intermediary and the other to the importer, and that the first sale is not in the course of export, for the export begins from the intermediary and ends with the importer. According to the Court the test was that there must be a single sale which itself causes the export and that there is no room for two or more sales in the course of export. The Court, therefore, held that though the sales by the Coffee Board were sales for export, they were not sales in the course of export that there was two independent sales involved in the export programme; the first sale by the Coffee Board to the export promoter, and the second sale by the export promoter to a foreign buyer which occasioned the movement of goods and that the latter sale alone could earn the exemption from sales tax as being a sale in the course of export13. In Khosla case, (1966) 3 SCR 352 = (AIR 1966 SC 1216 ), it might be recalled that Khosla and Co. entered into the contract of sale with the DGS and D for the supply of axle bodies manufactured by its principal in Belgium and the goods were to be inspected by the buyer in Belgium but under the contract of sale the goods were liable to be rejected after a further inspection by the buyer in India. It was in pursuance to this contract that the goods were imported into the country and supplied to the buyer at Perambur and Mysore. From the statement of facts of the case as given in the judgment of the High Court it is not clear that there was a sale by the manufacturers in Belgium to Khosla and Co., their agent in India. It would seem that the only sale was the sale by Khosla and Co. as agent of the manufacturer in Belgium.16. There was no obligation under the contracts on the part of the DGS and D to procure import licences for the petitioner. On the other hand, the recommendation for import licence made by DGS and D did not carry with it any imperative obligation upon the Chief Controller of Imports and Exports to issue the import licence. Though under the contract DGS and D undertook to provide all facilities for the import of the goods for fulfilling the contracts including an Import Recommendation Certificate, there was no absolute obligation on the DGS and D to procure these facilities. And, it was the obligation of the petitioner to obtain the import licence. Therefore, even if the contracts envisaged the import of goods and their supply to the DGS and D from out of the goods imported it did not follow that the movement of the goods in the course of import was occasioned by the contracts of sale by the petitioner with DGS and D17. We see no reason in principle to distinguish this case from the decision in the Coffee Board case, (1970) 3 SCR 147 = (AIR 1971 SC 870 = 1971 Tax LR 391) though that case was concerned with the question when a sale occasions the movement of goods in the course of export
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Naveen Kohli Vs. Neelu Kohli | with the appellant then to come to this finding in the next para that it will by no stretch of imagination result in mental cruelty is wholly untenable. 44. The findings of the High Court that the respondent wifes cautioning the entire world not to deal with the appellant (her husband) would not lead to mental cruelty is also wholly unsustainable. 45. The High Court ought to have examined the facts of the case and its impact. In the instant case, the following cases were filed by the respondent against the appellant. 1. The respondent filed FIR No. 100/96 at Police Station, Kohna under Sections 379/323 IPC 2. The respondent got a case registered under Sections 323/324 registered in the police station Panki, Kanpur City. 3. At the behest of the respondent FIR No.156 of 1996 was also filed in the police station, Panki. 4. The respondent filed FIR under Section 420/468 IPC at the Police Station, Kotwali. 5. The respondent got a case registered under Section under Sections 420/467/468 and 471 IPC. 6. The respondent filed a complaint against the appellant under Sections 498A/323/504/506 IPC at Police Station, Kohna. 7. The respondent had even gone to the extent of opposing the bail application of the appellant in criminal case filed at the police station, Kotwali 8. When police filed final report in two criminal cases at police station, Kotwali and police station, Kohna, the respondent filed protest petition in these cases. 9. The respondent filed complaint no.125 of 1998 in the Women Cell, Delhi in September 1997 against the appellants lawyer and friend alleging criminal intimidation. 10. The respondent filed a complaint under sections 397/398 before the Company Law Board, New Delhi. 11. The respondent filed a complaint in Case No.1365 0f 1988 against the appellant. 12. Again on 8.7.1999, the respondent filed a complaint in the Parliament Street Police Station, New Delhi and made all efforts to get the appellant arrested. 13. On 31.3.1999, the respondent have sent a notice for breaking the Nucleus of the HUF. 14. The respondent filed a complaint against the appellant under Section 24 of the Hindu Marriage Act. 15. The respondent had withdrawn Rs.9,50,000/- from the bank account of the appellant in a clandestine manner. 16. On 22.1.01 the respondent gave affidavit before the High Court and got non-bailable warrants issued against the appellant. 17. The respondent got an advertisement issued in a national newspaper that the appellant was only her employee. She got another news item issued cautioning the business associates to avoid dealing with the appellant. The findings of the High Court that these proceedings could not be taken to be such which may warrant annulment of marriage is wholly unsustainable. 46. Even at this stage, the respondent does not want divorce by mutual consent. From the analysis and evaluation of the entire evidence, it is clear that the respondent has resolved to live in agony only to make life a miserable hell for the appellant as well. This type of adamant and callous attitude, in the context of the facts of this case, leaves no manner of doubt in our mind that the respondent is bent upon treating the appellant with mental cruelty. It is abundantly clear that the marriage between the parties had broken down irretrievably and there is no chance of their coming together, or living together again. 47. The High Court ought to have appreciated that there is no acceptable way in which the parties can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied forever to a marriage that in fact has ceased to exist. 48. Undoubtedly, it is the obligation of the Court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist. In the instant case, there has been total disappearance of emotional substratum in the marriage. The course which has been adopted by the High Court would encourage continuous bickering, perpetual bitterness and may lead to immorality. 49. In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond. 50. The High Court ought to have visualized that preservation of such a marriage is totally unworkable which has ceased to be effective and would be greater source of misery for the parties. 51. The High Court ought to have considered that a human problem can be properly resolved by adopting a human approach. In the instant case, not to grant a decree of divorce would be disastrous for the parties. Otherwise, there may be a ray of hope for the parties that after a passage of time (after obtaining a decree of divorce) the parties may psychologically and emotionally settle down and start a new chapter in life. 52. In our considered view, looking to the peculiar facts of the case, the High Court was not justified in setting aside the order of the Trial Court. In our opinion, wisdom lies in accepting the pragmatic reality of life and take a decision which would ultimately be conducive in the interest of both the parties. 53. | 0[ds]The High Court ought to have considered the repercussions, consequences, impact and ramifications of all the criminal and other proceedings initiated by the parties against each other in proper perspective. For illustration, the High Court has mentioned that so far as the publication of the news item is concerned, the status of husband in a registered company was only that of an employee and if any news item is published, in such a situation, it could not, by any stretch of imagination be taken to have lowered the prestige of the husband. In the next para 69 of the judgment that in one of the news item what has been indicated was that in the company, Nikhil Rubber (P) Ltd., the appellant was only a Director along with Mrs. Neelu Kohli whom held 94.5% share of Rs.100/- each in the company. The news item further indicated that Naveen Kohli was acting against the spirit of the Article of the Association of Nikhil Rubber (P) Ltd., had caused immense loss of business and goodwill. He has stealthily removed produce of the company, besides diverted orders of foreign buyers to his proprietorship firm M/s Navneet Elastomers. He had opened bank account with forged signatures of Mrs. Neelu Kohli and fabricated resolution of the Board of Directors of the company. Statutory authority-Companies Act had refused to register documents filed by Mr. Naveen Kolhi and had issued show cause notice. All business associates were cautioned to avoid dealing with him alone. Neither the company nor Mrs. Neelu Kohli shall be liable for the acts of Mr. Naveen Kohli. Despite the aforementioned finding that the news item was intended to caution business associates to avoid dealing with the appellant then to come to this finding in the next para that it will by no stretch of imagination result in mental cruelty is wholly untenableThe findings of the High Court that the respondent wifes cautioning the entire world not to deal with the appellant (her husband) would not lead to mental cruelty is also wholly unsustainableIn view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bondThe High Court ought to have visualized that preservation of such a marriage is totally unworkable which has ceased to be effective and would be greater source of misery for the partiesThe High Court ought to have considered that a human problem can be properly resolved by adopting a human approach. In the instant case, not to grant a decree of divorce would be disastrous for the parties. Otherwise, there may be a ray of hope for the parties that after a passage of time (after obtaining a decree of divorce) the parties may psychologically and emotionally settle down and start a new chapter in lifeIn our considered view, looking to the peculiar facts of the case, the High Court was not justified in setting aside the order of the Trial Court. In our opinion, wisdom lies in accepting the pragmatic reality of life and take a decision which would ultimately be conducive in the interest of both the parties | 0 | 11,168 | 671 | ### 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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with the appellant then to come to this finding in the next para that it will by no stretch of imagination result in mental cruelty is wholly untenable. 44. The findings of the High Court that the respondent wifes cautioning the entire world not to deal with the appellant (her husband) would not lead to mental cruelty is also wholly unsustainable. 45. The High Court ought to have examined the facts of the case and its impact. In the instant case, the following cases were filed by the respondent against the appellant. 1. The respondent filed FIR No. 100/96 at Police Station, Kohna under Sections 379/323 IPC 2. The respondent got a case registered under Sections 323/324 registered in the police station Panki, Kanpur City. 3. At the behest of the respondent FIR No.156 of 1996 was also filed in the police station, Panki. 4. The respondent filed FIR under Section 420/468 IPC at the Police Station, Kotwali. 5. The respondent got a case registered under Section under Sections 420/467/468 and 471 IPC. 6. The respondent filed a complaint against the appellant under Sections 498A/323/504/506 IPC at Police Station, Kohna. 7. The respondent had even gone to the extent of opposing the bail application of the appellant in criminal case filed at the police station, Kotwali 8. When police filed final report in two criminal cases at police station, Kotwali and police station, Kohna, the respondent filed protest petition in these cases. 9. The respondent filed complaint no.125 of 1998 in the Women Cell, Delhi in September 1997 against the appellants lawyer and friend alleging criminal intimidation. 10. The respondent filed a complaint under sections 397/398 before the Company Law Board, New Delhi. 11. The respondent filed a complaint in Case No.1365 0f 1988 against the appellant. 12. Again on 8.7.1999, the respondent filed a complaint in the Parliament Street Police Station, New Delhi and made all efforts to get the appellant arrested. 13. On 31.3.1999, the respondent have sent a notice for breaking the Nucleus of the HUF. 14. The respondent filed a complaint against the appellant under Section 24 of the Hindu Marriage Act. 15. The respondent had withdrawn Rs.9,50,000/- from the bank account of the appellant in a clandestine manner. 16. On 22.1.01 the respondent gave affidavit before the High Court and got non-bailable warrants issued against the appellant. 17. The respondent got an advertisement issued in a national newspaper that the appellant was only her employee. She got another news item issued cautioning the business associates to avoid dealing with the appellant. The findings of the High Court that these proceedings could not be taken to be such which may warrant annulment of marriage is wholly unsustainable. 46. Even at this stage, the respondent does not want divorce by mutual consent. From the analysis and evaluation of the entire evidence, it is clear that the respondent has resolved to live in agony only to make life a miserable hell for the appellant as well. This type of adamant and callous attitude, in the context of the facts of this case, leaves no manner of doubt in our mind that the respondent is bent upon treating the appellant with mental cruelty. It is abundantly clear that the marriage between the parties had broken down irretrievably and there is no chance of their coming together, or living together again. 47. The High Court ought to have appreciated that there is no acceptable way in which the parties can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied forever to a marriage that in fact has ceased to exist. 48. Undoubtedly, it is the obligation of the Court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist. In the instant case, there has been total disappearance of emotional substratum in the marriage. The course which has been adopted by the High Court would encourage continuous bickering, perpetual bitterness and may lead to immorality. 49. In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond. 50. The High Court ought to have visualized that preservation of such a marriage is totally unworkable which has ceased to be effective and would be greater source of misery for the parties. 51. The High Court ought to have considered that a human problem can be properly resolved by adopting a human approach. In the instant case, not to grant a decree of divorce would be disastrous for the parties. Otherwise, there may be a ray of hope for the parties that after a passage of time (after obtaining a decree of divorce) the parties may psychologically and emotionally settle down and start a new chapter in life. 52. In our considered view, looking to the peculiar facts of the case, the High Court was not justified in setting aside the order of the Trial Court. In our opinion, wisdom lies in accepting the pragmatic reality of life and take a decision which would ultimately be conducive in the interest of both the parties. 53.
### Response:
0
### Explanation:
The High Court ought to have considered the repercussions, consequences, impact and ramifications of all the criminal and other proceedings initiated by the parties against each other in proper perspective. For illustration, the High Court has mentioned that so far as the publication of the news item is concerned, the status of husband in a registered company was only that of an employee and if any news item is published, in such a situation, it could not, by any stretch of imagination be taken to have lowered the prestige of the husband. In the next para 69 of the judgment that in one of the news item what has been indicated was that in the company, Nikhil Rubber (P) Ltd., the appellant was only a Director along with Mrs. Neelu Kohli whom held 94.5% share of Rs.100/- each in the company. The news item further indicated that Naveen Kohli was acting against the spirit of the Article of the Association of Nikhil Rubber (P) Ltd., had caused immense loss of business and goodwill. He has stealthily removed produce of the company, besides diverted orders of foreign buyers to his proprietorship firm M/s Navneet Elastomers. He had opened bank account with forged signatures of Mrs. Neelu Kohli and fabricated resolution of the Board of Directors of the company. Statutory authority-Companies Act had refused to register documents filed by Mr. Naveen Kolhi and had issued show cause notice. All business associates were cautioned to avoid dealing with him alone. Neither the company nor Mrs. Neelu Kohli shall be liable for the acts of Mr. Naveen Kohli. Despite the aforementioned finding that the news item was intended to caution business associates to avoid dealing with the appellant then to come to this finding in the next para that it will by no stretch of imagination result in mental cruelty is wholly untenableThe findings of the High Court that the respondent wifes cautioning the entire world not to deal with the appellant (her husband) would not lead to mental cruelty is also wholly unsustainableIn view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bondThe High Court ought to have visualized that preservation of such a marriage is totally unworkable which has ceased to be effective and would be greater source of misery for the partiesThe High Court ought to have considered that a human problem can be properly resolved by adopting a human approach. In the instant case, not to grant a decree of divorce would be disastrous for the parties. Otherwise, there may be a ray of hope for the parties that after a passage of time (after obtaining a decree of divorce) the parties may psychologically and emotionally settle down and start a new chapter in lifeIn our considered view, looking to the peculiar facts of the case, the High Court was not justified in setting aside the order of the Trial Court. In our opinion, wisdom lies in accepting the pragmatic reality of life and take a decision which would ultimately be conducive in the interest of both the parties
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Govind Prasad Chaturvedi Vs. Hari Dutt Shastri and Another | 5th May the receipt of which was not denied by the reply of the advocate for the respondents and the lawyers notices on behalf of the appellant, Ex. P-35 and P-36, dated 13th May and 22nd May, 1964 would show great anxiety on the part of the appellant to complete the sale de ed. There can be no doubt that they had basis for suspecting that the respondents were not willing to perform their part of the contract.A considerable volume of evidence has been let in on behalf of the appellant as well as the respondents regarding as to what took place in the Sub-Registrars office on 25th May, 1964. It is sufficient to state that both the parties let in oral evidence as well as acknowledgment by the Sub-Registrar to prove their presence. Though both the parties would assert their presence it is common ground that they did not meet each other. It is difficult for us to. comprehend as to how if both the parties we re present at the Sub-Registrars office they did not meet each other. It is obvious therefore that the parties were keen on creating evidence in support of the ensuing litigation. But on the facts the conclusion is irresistible that it was the appellant who was anxious to get through the sale deed, he having paid Rs. 4000 as the earnest money and living in the premises for over 25 years. It is not necessary for us to refer to the subsequent letters and telegrams exchanged between the parties as that would not alter the position in any event.7. On a consideration of the letters and telegrams that passed between the parties the trial court held that it was proved beyond a shadow of doubt that the appellant was always ready and willing to perform his part of the contract and that the respondents were not anxious to execute the sale deed. The trial court accepted the evidence on behalf of the appellant that the appellant was possessed of sufficient funds and in fact he withdrew a sum of Rs. 20, 500 from the Central Bank of India Ltd. As the appellant had paid the respondents Rs. 4000 he had to pay them only Rs. 20, 000 towards the balance of sale consideration. The arrears of Rs. 956 due towards rent and a sum of Rs. 2000 was to be spent on getting the sale deed executed. In all a sum of Rs. 22, 956 was required. He had withdrawn Rs. 20, 500 from the Central Bank of India Ltd. The trial court accepted the evidence adduced by the appellant. The trial court also accepted the evidence that the appellant had Rs. 5, 000 with him at home and about Rs. 30, 000 in deposit with a firm. This part of the testimony on behalf of the appellant was proved by the evidence of Kailash Nath. P.W.2, Manira of M/s. Chhitar Mal Ram Dayal and the trial court accepted the evidence and found that the appellant had sufficient funds for getting the sale deed executed.This conclusion which we consider is irresistible was not accepted b y the High Court. The High Court while accepting the evidence that the appellant had a sum of Rs.4, 500 in deposit in the bank upto 20th May, 1964 and subsequently on 21st May, 1964 he deposited a sum of Rs.14, 000 and again a sum of Rs. 2, 500 on 22nd May, 1964 and that thus the appellant had Rs. 21, 000 in bank on 22nd May, 1964 found the case of the appellant unworthy of credit. The High Court further observe d that after the appellant had raised his deposit in the bank to Rs. 21, 000 he did not deposit any further amount and therefore the amount fell short of the needed amount by Rs. 2, 000. Conscious of the weakness in his story, the appellant asserted in his statement that he had Rs. 7, 000 or 8, 000 with him at his house. We are at a loss to follow the reasoning of the High Court. The appellant stated that he deposited the money which was with him in the house in the bank on advice for the purpose of proving that he had money with him. The Court does not suspect that he did not have Rs. 20, 500. The shortage at the most is of Rs. 2, 000 and it cannot be said that the evidence of the appellant that he had necessary money for expenses of registration is unacceptable. Further the appellant examined Kailash Nath, P.W.2, of M/s. Chhitar Mal Ram Dayal who stated that a sum of Rs.30, 000 belonging to the appellant was lying in deposit with them. We are unable to accept the conclusion of the High Court that the appellant did not have enough funds for getting the sale deed executed the High Court while not disbelieving the fact that various letters and telegrams were sent by the appellant has remarked that the appellant did not take the course of personally going to the respondents and asking for the: sale deed. In our view, the parties were suspecting each other and nothing would have been achieved by the appellant by going in person and requesting the respondents to execute the sale deed. In fact the respondents set up. a story that the appellant approached the respondents and stated that he was not able to perform his part of the contract within the Stipulated time. This evidence cannot be accepted taking into account the relationship between the parties. We have carefully considered the evidence and the correspondence between the parties and we have no hesitation in accepting the conclusion reached by the trial Judge that the appellant was always ready and willing to perform his part of the contract and that the respondents were evading their responsibility. The finding on this issue by the High Court is not supported by evidence or on the probabilities of the case. | 1[ds]The relevant clause is clause 4 which provides that the appellant must get the sale deed executed within two months i.e. upto 24th May, 1964, and in case the appellant did not get the sale deed registered within two months then the earnest money amounting to Rs. 4000 paid by the appellant shall stand forfeited without serving any notice. The clause further provides that in case the respondents in some way evade the execution of the sale deed then the appellant will be entitled to compel them to execute the sale deed legally and the respondents shall be liable to pay the costs and damages incurred by the appellant. It is settled law that the fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. When a contract relates to sale of immoveable property it will normally be presumed that the time is not the essence of the contract. (vide Gomathinayagam, Pillai &Ors. v. Palaniswami Nadar)([1967] 1 S.C..R. 227, 233.). It may also be mentioned that the language used in the agreement is not such as to indicate in unmistakable terms that the time is of the essence of the contract. The intention to treat time as the essence of the contract may be evidenced by circumstances which are sufficiently strong to displace the normal presumption that in a contract of sale of land stipulation as to time is not the essence-of the contract.Apart from the normal presumption that in the case of an agreement of sale of immovable property time is not the essence of the contract and the fact that the terms of the agreement do not unmistakably state that the time was understood to be the essence of the contract neither in the pleadings nor during the trial the respondents contended that time was of the essence of the contract. In the plaint the allegation was that the appellant has always been ready and willing to perform his part of the contract and he did all that he was bound to do under the agreement while the respondents committed breach of the contract. The respondents did not set up the plea that the time was of the essence of the contract. In paragraph 32 of the Written Statement all that was stated was that the appellant did not perform his part of the contract within the stipulated time and that the contract thereafter did not. subsist and the suit is consequently misconceived. The parties did not go to trial on the basis that time was of the essence of the contract for no issue was framed regarding time being the essence of the contract. Neither is there any discussion in the judgment of the trial court regarding this point. The trial court after considering the evidence came to the conclusion that appellant was always ready and willing to perform his part of the contract while the respondents were not in the circumstances therefore the High Court was in error setting as one of the points for determination whether time was of the essence of the contract. The High Court after referring to the agreement was of the view that the agreement was entered into between the parties during the course of a litigation between the appellant and the respondents and in pursuance of the agreement the parties were directed, to withdraw their cases and were directed further not to take fresh legal steps during the period of two months within which the sale deed was to be executed. On taking into, account the circumstances of the case and...the conduct of the parties of serving on each other notices, counter notices and telegrams the High Court inferred an intention on the part of the parties to treat the time as of essence, of the contract. We will refer to the terms of the contract and the correspondence between the parties in due course but at this stage it is sufficient to state that neither the term s of the agreement nor the correspondence would indicate that the parties treated time as of essence of the contract. In fact, according to the agreement the sale deed ought to have been executed by the 24th May but it is the admitted case that both the parties consented to have the document registered on the 25thfrom the absence of pleadings we do not find any basis for the plea of the respondents that the time was of the essence of the contract.The decision on this issue would be sufficient to allow this appeal and to grant the appellant the decree for specific performance which he has prayed for but as on the question whether the appellant was always ready and willing to perform his part o f the contract the courts below have given contrary finding and the High Court , has recorded a finding that the appellant was not ready and willing to. perform his part of the contract while the respondents were al ways ready and willing with which finding we are unable to agree we will discuss the evidence at somerespondents plea that the draft sale deed was not received does not show that they were willing or cooperating in the execution of the sale deed. We are unable to, give any weight to the contention of the learned counsel that their plea that they sent a draft sale deed cannot be true as they could not have been in possession of particulars about the title deed of the respondents. In fact no question was asked of the appellant when he was in the box as to how they got information as to the sale deed, by Aditya Narain in favour of the respondents. The letter of the 5th May the receipt of which was not denied by the reply of the advocate for the respondents and the lawyers notices on behalf of the appellant, Ex. P-35 and P-36, dated 13th May and 22nd May, 1964 would show great anxiety on the part of the appellant to complete the sale de ed. There can be no doubt that they had basis for suspecting that the respondents were not willing to perform their part of the contract.A considerable volume of evidence has been let in on behalf of the appellant as well as the respondents regarding as to what took place in the Sub-Registrars office on 25th May, 1964. It is sufficient to state that both the parties let in oral evidence as well as acknowledgment by the Sub-Registrar to prove their presence. Though both the parties would assert their presence it is common ground that they did not meet each other. It is difficult for us to. comprehend as to how if both the parties we re present at the Sub-Registrars office they did not meet each other. It is obvious therefore that the parties were keen on creating evidence in support of the ensuing litigation. But on the facts the conclusion is irresistible that it was the appellant who was anxious to get through the sale deed, he having paid Rs. 4000 as the earnest money and living in the premises for over 25 years. It is not necessary for us to refer to the subsequent letters and telegrams exchanged between the parties as that would not alter the position in anyare at a loss to follow the reasoning of the High Court. The appellant stated that he deposited the money which was with him in the house in the bank on advice for the purpose of proving that he had money with him. The Court does not suspect that he did not have Rs. 20, 500. The shortage at the most is of Rs. 2, 000 and it cannot be said that the evidence of the appellant that he had necessary money for expenses of registration is unacceptable. Further the appellant examined Kailash Nath, P.W.2, of M/s. Chhitar Mal Ram Dayal who stated that a sum of Rs.30, 000 belonging to the appellant was lying in deposit with them. We are unable to accept the conclusion of the High Court that the appellant did not have enough funds for getting the sale deed executed the High Court while not disbelieving the fact that various letters and telegrams were sent by the appellant has remarked that the appellant did not take the course of personally going to the respondents and asking for the: sale deed. In our view, the parties were suspecting each other and nothing would have been achieved by the appellant by going in person and requesting the respondents to execute the sale deed. In fact the respondents set up. a story that the appellant approached the respondents and stated that he was not able to perform his part of the contract within the Stipulated time. This evidence cannot be accepted taking into account the relationship between the parties. We have carefully considered the evidence and the correspondence between the parties and we have no hesitation in accepting the conclusion reached by the trial Judge that the appellant was always ready and willing to perform his part of the contract and that the respondents were evading their responsibility. The finding on this issue by the High Court is not supported by evidence or on the probabilities of the case. | 1 | 4,671 | 1,650 | ### 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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5th May the receipt of which was not denied by the reply of the advocate for the respondents and the lawyers notices on behalf of the appellant, Ex. P-35 and P-36, dated 13th May and 22nd May, 1964 would show great anxiety on the part of the appellant to complete the sale de ed. There can be no doubt that they had basis for suspecting that the respondents were not willing to perform their part of the contract.A considerable volume of evidence has been let in on behalf of the appellant as well as the respondents regarding as to what took place in the Sub-Registrars office on 25th May, 1964. It is sufficient to state that both the parties let in oral evidence as well as acknowledgment by the Sub-Registrar to prove their presence. Though both the parties would assert their presence it is common ground that they did not meet each other. It is difficult for us to. comprehend as to how if both the parties we re present at the Sub-Registrars office they did not meet each other. It is obvious therefore that the parties were keen on creating evidence in support of the ensuing litigation. But on the facts the conclusion is irresistible that it was the appellant who was anxious to get through the sale deed, he having paid Rs. 4000 as the earnest money and living in the premises for over 25 years. It is not necessary for us to refer to the subsequent letters and telegrams exchanged between the parties as that would not alter the position in any event.7. On a consideration of the letters and telegrams that passed between the parties the trial court held that it was proved beyond a shadow of doubt that the appellant was always ready and willing to perform his part of the contract and that the respondents were not anxious to execute the sale deed. The trial court accepted the evidence on behalf of the appellant that the appellant was possessed of sufficient funds and in fact he withdrew a sum of Rs. 20, 500 from the Central Bank of India Ltd. As the appellant had paid the respondents Rs. 4000 he had to pay them only Rs. 20, 000 towards the balance of sale consideration. The arrears of Rs. 956 due towards rent and a sum of Rs. 2000 was to be spent on getting the sale deed executed. In all a sum of Rs. 22, 956 was required. He had withdrawn Rs. 20, 500 from the Central Bank of India Ltd. The trial court accepted the evidence adduced by the appellant. The trial court also accepted the evidence that the appellant had Rs. 5, 000 with him at home and about Rs. 30, 000 in deposit with a firm. This part of the testimony on behalf of the appellant was proved by the evidence of Kailash Nath. P.W.2, Manira of M/s. Chhitar Mal Ram Dayal and the trial court accepted the evidence and found that the appellant had sufficient funds for getting the sale deed executed.This conclusion which we consider is irresistible was not accepted b y the High Court. The High Court while accepting the evidence that the appellant had a sum of Rs.4, 500 in deposit in the bank upto 20th May, 1964 and subsequently on 21st May, 1964 he deposited a sum of Rs.14, 000 and again a sum of Rs. 2, 500 on 22nd May, 1964 and that thus the appellant had Rs. 21, 000 in bank on 22nd May, 1964 found the case of the appellant unworthy of credit. The High Court further observe d that after the appellant had raised his deposit in the bank to Rs. 21, 000 he did not deposit any further amount and therefore the amount fell short of the needed amount by Rs. 2, 000. Conscious of the weakness in his story, the appellant asserted in his statement that he had Rs. 7, 000 or 8, 000 with him at his house. We are at a loss to follow the reasoning of the High Court. The appellant stated that he deposited the money which was with him in the house in the bank on advice for the purpose of proving that he had money with him. The Court does not suspect that he did not have Rs. 20, 500. The shortage at the most is of Rs. 2, 000 and it cannot be said that the evidence of the appellant that he had necessary money for expenses of registration is unacceptable. Further the appellant examined Kailash Nath, P.W.2, of M/s. Chhitar Mal Ram Dayal who stated that a sum of Rs.30, 000 belonging to the appellant was lying in deposit with them. We are unable to accept the conclusion of the High Court that the appellant did not have enough funds for getting the sale deed executed the High Court while not disbelieving the fact that various letters and telegrams were sent by the appellant has remarked that the appellant did not take the course of personally going to the respondents and asking for the: sale deed. In our view, the parties were suspecting each other and nothing would have been achieved by the appellant by going in person and requesting the respondents to execute the sale deed. In fact the respondents set up. a story that the appellant approached the respondents and stated that he was not able to perform his part of the contract within the Stipulated time. This evidence cannot be accepted taking into account the relationship between the parties. We have carefully considered the evidence and the correspondence between the parties and we have no hesitation in accepting the conclusion reached by the trial Judge that the appellant was always ready and willing to perform his part of the contract and that the respondents were evading their responsibility. The finding on this issue by the High Court is not supported by evidence or on the probabilities of the case.
### Response:
1
### Explanation:
pursuance of the agreement the parties were directed, to withdraw their cases and were directed further not to take fresh legal steps during the period of two months within which the sale deed was to be executed. On taking into, account the circumstances of the case and...the conduct of the parties of serving on each other notices, counter notices and telegrams the High Court inferred an intention on the part of the parties to treat the time as of essence, of the contract. We will refer to the terms of the contract and the correspondence between the parties in due course but at this stage it is sufficient to state that neither the term s of the agreement nor the correspondence would indicate that the parties treated time as of essence of the contract. In fact, according to the agreement the sale deed ought to have been executed by the 24th May but it is the admitted case that both the parties consented to have the document registered on the 25thfrom the absence of pleadings we do not find any basis for the plea of the respondents that the time was of the essence of the contract.The decision on this issue would be sufficient to allow this appeal and to grant the appellant the decree for specific performance which he has prayed for but as on the question whether the appellant was always ready and willing to perform his part o f the contract the courts below have given contrary finding and the High Court , has recorded a finding that the appellant was not ready and willing to. perform his part of the contract while the respondents were al ways ready and willing with which finding we are unable to agree we will discuss the evidence at somerespondents plea that the draft sale deed was not received does not show that they were willing or cooperating in the execution of the sale deed. We are unable to, give any weight to the contention of the learned counsel that their plea that they sent a draft sale deed cannot be true as they could not have been in possession of particulars about the title deed of the respondents. In fact no question was asked of the appellant when he was in the box as to how they got information as to the sale deed, by Aditya Narain in favour of the respondents. The letter of the 5th May the receipt of which was not denied by the reply of the advocate for the respondents and the lawyers notices on behalf of the appellant, Ex. P-35 and P-36, dated 13th May and 22nd May, 1964 would show great anxiety on the part of the appellant to complete the sale de ed. There can be no doubt that they had basis for suspecting that the respondents were not willing to perform their part of the contract.A considerable volume of evidence has been let in on behalf of the appellant as well as the respondents regarding as to what took place in the Sub-Registrars office on 25th May, 1964. It is sufficient to state that both the parties let in oral evidence as well as acknowledgment by the Sub-Registrar to prove their presence. Though both the parties would assert their presence it is common ground that they did not meet each other. It is difficult for us to. comprehend as to how if both the parties we re present at the Sub-Registrars office they did not meet each other. It is obvious therefore that the parties were keen on creating evidence in support of the ensuing litigation. But on the facts the conclusion is irresistible that it was the appellant who was anxious to get through the sale deed, he having paid Rs. 4000 as the earnest money and living in the premises for over 25 years. It is not necessary for us to refer to the subsequent letters and telegrams exchanged between the parties as that would not alter the position in anyare at a loss to follow the reasoning of the High Court. The appellant stated that he deposited the money which was with him in the house in the bank on advice for the purpose of proving that he had money with him. The Court does not suspect that he did not have Rs. 20, 500. The shortage at the most is of Rs. 2, 000 and it cannot be said that the evidence of the appellant that he had necessary money for expenses of registration is unacceptable. Further the appellant examined Kailash Nath, P.W.2, of M/s. Chhitar Mal Ram Dayal who stated that a sum of Rs.30, 000 belonging to the appellant was lying in deposit with them. We are unable to accept the conclusion of the High Court that the appellant did not have enough funds for getting the sale deed executed the High Court while not disbelieving the fact that various letters and telegrams were sent by the appellant has remarked that the appellant did not take the course of personally going to the respondents and asking for the: sale deed. In our view, the parties were suspecting each other and nothing would have been achieved by the appellant by going in person and requesting the respondents to execute the sale deed. In fact the respondents set up. a story that the appellant approached the respondents and stated that he was not able to perform his part of the contract within the Stipulated time. This evidence cannot be accepted taking into account the relationship between the parties. We have carefully considered the evidence and the correspondence between the parties and we have no hesitation in accepting the conclusion reached by the trial Judge that the appellant was always ready and willing to perform his part of the contract and that the respondents were evading their responsibility. The finding on this issue by the High Court is not supported by evidence or on the probabilities of the case.
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J. Vasanthi Vs. N. Ramani Kanthammal (D) Rep. By Lrs. | Shailendra Bhardwaj (supra). In Suhrid Singh (supra) the Court was dealing with a different situation. Be that as it may, the valuation of a suit and payment of court fee shall depend upon the special provision in a State if provided for. The view taken by the Madras High Court in Chellakannu (supra), in our considered opinion, is the correct exposition of law. 25. Another aspect needs to be noted. As we notice from the impugned judgment, the High Court has expressed the view that payment of the court fee is a mixed question of fact and law and that has to be decided on the basis of evidence. 26. In this context, we have been commended to the decision in A. Nawab John and others v. V.N. Subramaniyam (2012) 7 SCC 738 ). On a careful perusal of the said decision, we find that the said authority nowhere addresses the issue that is involved in the case at hand. Proper valuation of the subject matter or under valuation is an aspect which can be contested by the defendant, but the said contest is limited. In this regard, the two-Judge Bench has reproduced two passages from Rathnavarmaraja v. Vimla (AIR 1961 SC 1299 )which we think seemly to reproduce: The Court Fees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action. By recognising that the defendant was entitled to contest the valuation of the properties in dispute as if it were a matter in issue between him and the plaintiff and by entertaining petitions preferred by the defendant to the High Court in exercise of its revisional jurisdiction against the order adjudging court fee payable on the plaint, all progress in the suit for the trial of the dispute on the merits has been effectively frustrated for nearly five years. We fail to appreciate what grievance the defendant can make by seeking to invoke the revisional jurisdiction of the High Court on the question whether the plaintiff has paid adequate court fee on his plaint. Whether proper court fee is paid on a plaint is primarily a question between the plaintiff and the State. How by an order relating to the adequacy of the court fee paid by the plaintiff, the defendant may feel aggrieved, it is difficult to appreciate. Again, the jurisdiction in revision exercised by the High Court under Section 115 of the Code of Civil Procedure is strictly conditioned by clauses (a) to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the subordinate court or assumption of jurisdiction which the court does not possess or on the ground that the court has acted illegally or with material irregularity in the exercise of its jurisdiction. The defendant who may believe and even honestly that proper court fee has not been paid by the plaintiff has still no right to move the superior courts by appeal or in revision against the order adjudging payment of court fee payable on the plaint. But counsel for the defendant says that by Act 14 of 1955 enacted by the Madras Legislature which applied to the suit in question, the defendant has been invested with a right not only to contest in the trial court the issue whether adequate court fee has been paid by the plaintiff, but also to move the High Court in revision if an order contrary to his submission is passed by the court. Reliance in support of that contention is placed upon sub-section (2) of Section 12. That subsection, insofar as it is material, provides: x x x x But this section only enables the defendant to raise a contention as to the proper court fee payable on a plaint and to assist the court in arriving at a just decision on that question. Our attention has not been invited to any provision of the Madras Court Fees Act or any other statute which enables the defendant to move the High Court in revision against the decision of the court of first instance on the matter of court fee payable in a plaint. The Act, it is true by Section 19 provides that for the purpose of deciding whether the subject-matter of the suit or other proceeding has been properly valued or whether the fee paid is sufficient, the court may hold such enquiry as it considers proper and issue a commission to any other person directing him to make such local or other investigation as may be necessary and report thereon. The anxiety of the legislature to collect court fee due from the litigant is manifest from the detailed provisions made in Chapter III of the Act, but those provisions do not arm the defendant with a weapon of technicality to obstruct the progress of the suit by approaching the High Court in revision against an order determining the court fee payable. (emphasis supplied) 27. On a perusal of the decision in Rathnavarmaraja (supra), we find the controversy had arisen with regard to proper valuation and the stand of the defendant was that the court fee had not been properly paid and in that context, the Court has held what as we have reproduced hereinabove. The issue being different, the said decision is distinguishable. We may reiterate that proper valuation of the suit property stands on a different footing than applicability of a particular provision of an Act under which court fee is payable and in such a situation, it is not correct to say that it has to be determined on the basis of evidence and it is a matter for the benefit of the revenue and the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action. It is because the Act empowers the defendant to raise the plea of jurisdiction on a different yardstick. | 1[ds]11. The singular issue that gains significance in this case is that the original plaintiff was a party to the transaction. Section 40 of the Act, as we notice, provides that in a suit for cancellation of a document, the court fee has to be computed on the value of ther of the suit and such value shall be deemed to be the whole decree or other document which is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed. It also spelt out that a part of the decree or other document is to be cancelled, such part of the amount or value of the property. On a careful scrutiny of the provision, it is limpid that it refers to the decree or other document and in that context, it uses the word value19. To appreciate the decision in P. Thillai Selvan (supra), we have carefully gone through the same and we find the High Court has referred to Order VII Rule 11 CPC, adverted to the issue of payment of court fee both as a question of fact and law and opined that the trial court has rightly rejected the petition. Thus, the said decision does not really deal with Section 40 of the Act24. The decisions in Suhrid Singh (supra) and Shailendra Bhardwaj (supra) have to be understood in their proper perspective. There was U.P. Amendment in Shailendra Bhardwaj (supra). In Suhrid Singh (supra) the Court was dealing with a different situation. Be that as it may, the valuation of a suit and payment of court fee shall depend upon the special provision in a State if provided for. The view taken by the Madras High Court in Chellakannu (supra), in our considered opinion, is the correct exposition of law25. Another aspect needs to be noted. As we notice from the impugned judgment, the High Court has expressed the view that payment of the court fee is a mixed question of fact and law and that has to be decided on the basis of evidence26. In this context, we have been commended to the decision in A. Nawab John and others v. V.N. Subramaniyam (2012) 7 SCC 738 ). On a careful perusal of the said decision, we find that the said authority nowhere addresses the issue that is involved in the case at hand. Proper valuation of the subject matter or under valuation is an aspect which can be contested by the defendant, but the said contest is limited26. In this context, we have been commended to the decision in A. Nawab John and others v. V.N. Subramaniyam (2012) 7 SCC 738 ). On a careful perusal of the said decision, we find that the said authority nowhere addresses the issue that is involved in the case at hand. Proper valuation of the subject matter or under valuation is an aspect which can be contested by the defendant, but the said contest is limited27. On a perusal of the decision in Rathnavarmaraja (supra), we find the controversy had arisen with regard to proper valuation and the stand of the defendant was that the court fee had not been properly paid and in that context, the Court has held what as we have reproduced hereinabove. The issue being different, the said decision is distinguishable. We may reiterate that proper valuation of the suit property stands on a different footing than applicability of a particular provision of an Act under which court fee is payable and in such a situation, it is not correct to say that it has to be determined on the basis of evidence and it is a matter for the benefit of the revenue and the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action. It is because the Act empowers the defendant to raise the plea of jurisdiction on a different yardstick. | 1 | 6,503 | 735 | ### Instruction:
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Shailendra Bhardwaj (supra). In Suhrid Singh (supra) the Court was dealing with a different situation. Be that as it may, the valuation of a suit and payment of court fee shall depend upon the special provision in a State if provided for. The view taken by the Madras High Court in Chellakannu (supra), in our considered opinion, is the correct exposition of law. 25. Another aspect needs to be noted. As we notice from the impugned judgment, the High Court has expressed the view that payment of the court fee is a mixed question of fact and law and that has to be decided on the basis of evidence. 26. In this context, we have been commended to the decision in A. Nawab John and others v. V.N. Subramaniyam (2012) 7 SCC 738 ). On a careful perusal of the said decision, we find that the said authority nowhere addresses the issue that is involved in the case at hand. Proper valuation of the subject matter or under valuation is an aspect which can be contested by the defendant, but the said contest is limited. In this regard, the two-Judge Bench has reproduced two passages from Rathnavarmaraja v. Vimla (AIR 1961 SC 1299 )which we think seemly to reproduce: The Court Fees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action. By recognising that the defendant was entitled to contest the valuation of the properties in dispute as if it were a matter in issue between him and the plaintiff and by entertaining petitions preferred by the defendant to the High Court in exercise of its revisional jurisdiction against the order adjudging court fee payable on the plaint, all progress in the suit for the trial of the dispute on the merits has been effectively frustrated for nearly five years. We fail to appreciate what grievance the defendant can make by seeking to invoke the revisional jurisdiction of the High Court on the question whether the plaintiff has paid adequate court fee on his plaint. Whether proper court fee is paid on a plaint is primarily a question between the plaintiff and the State. How by an order relating to the adequacy of the court fee paid by the plaintiff, the defendant may feel aggrieved, it is difficult to appreciate. Again, the jurisdiction in revision exercised by the High Court under Section 115 of the Code of Civil Procedure is strictly conditioned by clauses (a) to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the subordinate court or assumption of jurisdiction which the court does not possess or on the ground that the court has acted illegally or with material irregularity in the exercise of its jurisdiction. The defendant who may believe and even honestly that proper court fee has not been paid by the plaintiff has still no right to move the superior courts by appeal or in revision against the order adjudging payment of court fee payable on the plaint. But counsel for the defendant says that by Act 14 of 1955 enacted by the Madras Legislature which applied to the suit in question, the defendant has been invested with a right not only to contest in the trial court the issue whether adequate court fee has been paid by the plaintiff, but also to move the High Court in revision if an order contrary to his submission is passed by the court. Reliance in support of that contention is placed upon sub-section (2) of Section 12. That subsection, insofar as it is material, provides: x x x x But this section only enables the defendant to raise a contention as to the proper court fee payable on a plaint and to assist the court in arriving at a just decision on that question. Our attention has not been invited to any provision of the Madras Court Fees Act or any other statute which enables the defendant to move the High Court in revision against the decision of the court of first instance on the matter of court fee payable in a plaint. The Act, it is true by Section 19 provides that for the purpose of deciding whether the subject-matter of the suit or other proceeding has been properly valued or whether the fee paid is sufficient, the court may hold such enquiry as it considers proper and issue a commission to any other person directing him to make such local or other investigation as may be necessary and report thereon. The anxiety of the legislature to collect court fee due from the litigant is manifest from the detailed provisions made in Chapter III of the Act, but those provisions do not arm the defendant with a weapon of technicality to obstruct the progress of the suit by approaching the High Court in revision against an order determining the court fee payable. (emphasis supplied) 27. On a perusal of the decision in Rathnavarmaraja (supra), we find the controversy had arisen with regard to proper valuation and the stand of the defendant was that the court fee had not been properly paid and in that context, the Court has held what as we have reproduced hereinabove. The issue being different, the said decision is distinguishable. We may reiterate that proper valuation of the suit property stands on a different footing than applicability of a particular provision of an Act under which court fee is payable and in such a situation, it is not correct to say that it has to be determined on the basis of evidence and it is a matter for the benefit of the revenue and the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action. It is because the Act empowers the defendant to raise the plea of jurisdiction on a different yardstick.
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11. The singular issue that gains significance in this case is that the original plaintiff was a party to the transaction. Section 40 of the Act, as we notice, provides that in a suit for cancellation of a document, the court fee has to be computed on the value of ther of the suit and such value shall be deemed to be the whole decree or other document which is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed. It also spelt out that a part of the decree or other document is to be cancelled, such part of the amount or value of the property. On a careful scrutiny of the provision, it is limpid that it refers to the decree or other document and in that context, it uses the word value19. To appreciate the decision in P. Thillai Selvan (supra), we have carefully gone through the same and we find the High Court has referred to Order VII Rule 11 CPC, adverted to the issue of payment of court fee both as a question of fact and law and opined that the trial court has rightly rejected the petition. Thus, the said decision does not really deal with Section 40 of the Act24. The decisions in Suhrid Singh (supra) and Shailendra Bhardwaj (supra) have to be understood in their proper perspective. There was U.P. Amendment in Shailendra Bhardwaj (supra). In Suhrid Singh (supra) the Court was dealing with a different situation. Be that as it may, the valuation of a suit and payment of court fee shall depend upon the special provision in a State if provided for. The view taken by the Madras High Court in Chellakannu (supra), in our considered opinion, is the correct exposition of law25. Another aspect needs to be noted. As we notice from the impugned judgment, the High Court has expressed the view that payment of the court fee is a mixed question of fact and law and that has to be decided on the basis of evidence26. In this context, we have been commended to the decision in A. Nawab John and others v. V.N. Subramaniyam (2012) 7 SCC 738 ). On a careful perusal of the said decision, we find that the said authority nowhere addresses the issue that is involved in the case at hand. Proper valuation of the subject matter or under valuation is an aspect which can be contested by the defendant, but the said contest is limited26. In this context, we have been commended to the decision in A. Nawab John and others v. V.N. Subramaniyam (2012) 7 SCC 738 ). On a careful perusal of the said decision, we find that the said authority nowhere addresses the issue that is involved in the case at hand. Proper valuation of the subject matter or under valuation is an aspect which can be contested by the defendant, but the said contest is limited27. On a perusal of the decision in Rathnavarmaraja (supra), we find the controversy had arisen with regard to proper valuation and the stand of the defendant was that the court fee had not been properly paid and in that context, the Court has held what as we have reproduced hereinabove. The issue being different, the said decision is distinguishable. We may reiterate that proper valuation of the suit property stands on a different footing than applicability of a particular provision of an Act under which court fee is payable and in such a situation, it is not correct to say that it has to be determined on the basis of evidence and it is a matter for the benefit of the revenue and the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action. It is because the Act empowers the defendant to raise the plea of jurisdiction on a different yardstick.
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SAU. SANGEETA W/O SUNIL SHINDE Vs. THE STATE OF MAHARASHTRA AND ORS | elected cannot be replaced other- wise than through the very same process of the election in the group, in the ab- sence of any rules to the contra. No doubt, Nationalist Congress Party has 17 members in the aghadi (group). That does not mean that the said party can impose a Group Leader in the aghadi. Imposition of a Group Leader otherwise than by the demo- cratic process cuts at the roots of the democracy and certainly it is in violation of the Rules. It is always open to the original political parties to have their respective leaders in the aghadi. However, as far as Group Leader is concerned, he has to be elected by the aghadi (group). [emphasis supplied] 22. It could thus be seen that this Court has clearly held that the leader of a municipal party has to be chosen by aghadi or front and not by any outsider. It has been held by this Court that the change of leader has to be in the same democratic process of induction, in the absence of any other method prescribed under the Rules concerned. It has further been held that once the birth of a leader in a group is by way of election by the group, the Group Leader thus elected cannot be replaced otherwise than through the very same process of the election in the group, in the absence of any rules to the contra. It has been clearly held that imposition of a Group Leader otherwise than by the democratic process cuts at the roots of the democracy and certainly it is in violation of the Rules. 23. Though it is sought to be urged by Shri Shekhar Naphade, learned Senior Counsel that the appellant has been removed and respondent No.3 has been appointed as Group Leader by an outsider i.e. the President of Ahmednagar District INC Party, we are unable to accept the said contention. The election of the appellant as Group Leader was under the resolution in the meeting attended by all the four elected members and the said meeting was only chaired by the President of the Ahmednagar District INC Party. Similarly, the removal of the appellant and appointment of respondent No.3 is by INCPS Party, however, consisting of three members since the appellant had chosen the different path. 24. Somewhat similar observations have been made by this Court in the case of Bhanumati and others v. State of Uttar Pradesh and others (2010) 12 SCC 1 albeit with regard to the provisions of no confidence motion, which are as under: 58. These institutions must run on demo- cratic principles. In democracy all persons heading public bodies can continue pro- vided they enjoy the confidence of the per- sons who comprise such bodies. This is the essence of democratic republicanism….. 25. In the case of Usha Bharti v. State of Uttar Pradesh and others (2014) 7 SCC 663 , a challenge was made with regard to the validity of Section 28 of the U.P. Kshettra Panchayat mand Zilla Panchayats Act, 1961, which made a provision for no confidence against Chairperson of Zilla Panchayat to be not consistent with Part IX and, in particular, Article 243N of the Constitution of India. Negating the said contention/challenge, this Court in Usha Bharti (supra) observed thus: 31. We also do not find any merit in the submission of Mr Bhushan that permitting the provision contained in Section 28 of the Act to remain on the statute book would enable the executive to deprive the elected representatives of their fundamental rights enshrined in Part III and Part IX of the Constitution of India. In our opinion, the ratio of the judgment in I.R. Coelho [(2007) 2 SCC 1] relied upon by Mr Bhushan is wholly inapplicable in the facts and cir- cumstances of this case. There is no inter- ference whatsoever in the right of the elec- torate to choose. Rather Section 28 en- sures that an elected representative can only stay in power so long as such per- son enjoys the support of the majority of the elected members of the Zila Pan- chayat. In the present case, at the time of election, the petitioner was the cho- sen one, but, at the time when the mo- tion of no-confidence in the petitioner was passed, she was not wanted. There- fore, the right to choose of the elec- torate, is very much alive as a conse- quence of the provision contained in Section 28. [emphasis supplied] 26. This Court upheld the provisions of Section 28 which ensured that an elected representative can only stay in power so long as such person enjoys the support of the majority of the elected members of the Zila Panchayat. As soon as such a person loses the confidence of the majority, he becomes unwanted. In a democratic set up, the will of the majority has to prevail. 27. The appellant was elected as Gatneta when she enjoyed the support of all the members of INCPS Party. However, after she decided to walk on a different path, she lost the support of majority of the INCPS Party and as such, could not have thrust her leadership on the majority. No doubt, that the said Act and the said Rules are in tune with the provisions contained in the Tenth Schedule of the Constitution of India, so as to prevent horse-trading and maintain purity in the political system but, at the same time, the provisions cannot be interpreted in a manner that one person in minority will thrust himself/herself upon the other members who are in absolute majority. 28. We are amazed to hear the argument of horse- trading from the mouth of the appellant. It is the appellant who has acted contrary to the wishes of the Party and chose to contest the election of the Chairman of the Panchayat Samiti with the support of the rival group. It is for anybody to guess as to who has indulged in horse-trading. | 0[ds]14. Perusal of sub-rule (1) of Rule 3 of the said Rules would reveal that the leader of each municipal party or a Zilla Parishad party in relation to a councillor and the leader of Panchayat Samiti party in relation to a member is required to give requisite information within thirty days of formation of a party. The said information includes a statement in writing containing the names of members of such party together with other relevant particulars regarding such members as prescribed in Form I, and the names and designations of the members of such party who have been authorised by it for communicating with the Commissioner or, as the case may be, the Collector. The leader is also required to supply a copy of the rules and regulations (whether known as such or a constitution or/by any other name), of the municipal party, Zilla Parishad party or the Panchayat Samiti party concerned, as the case may be. Where such party has any separate set of rules and regulations (whether known as such or as constitution or/by any other name), a copy of such rules and regulations is also required to be submitted.15. Sub-rule (4) of Rule 3 of the said Rules provides that whenever any change takes place in the information furnished by the leader of a municipal party or a Zilla Parishad party, in relation to a Councillor or by the leader of a Panchayat Samiti party in relation to a member under sub-rule (1) or by a member under sub-rule (2), the information with respect to such change has to be communicated in writing to the Commissioner or, as the case may be, Collector.18. It could thus be seen that the very appointment of the appellant as Gatneta (Party Leader) is on the basis of the resolution of the meeting chaired by the President of the Ahmednagar District INC Party. The decision to remove the appellant from the post of Gatneta/Party Leader of the INCPS Party and to appoint respondent No.3 as Gatneta/Party Leader is also taken in a meeting which was presided over by the President of Ahmednagar District INC Party.19. It is pertinent to note that in the meeting dated 1.3.2017 itself, the authority to take steps with regard to change of leader was given to the President of the District INC Party. The appellant therefore cannot be heard to make grievance with regard to the procedure which was followed while removing her inasmuch as the entry of the appellant as Gatneta/Party Leader is by following the very same procedure.20. The so-called reference to rules and regulations under Rule 3(1)(b) of the said Rules cannot be stretched to be on par with the rules and regulations framed on the basis of any statutory power. The said rules are not happily worded. It appears from the record that the appellant has been the sole draftsman of the so-called rules and regulations referable to Rule 3(1)(b) of the said Rules. The source to submit the said Rules is on the basis of the resolution of the first INCPS Party meeting held on 1.3.2017. The resolution also contains that in the event of change of Party Leader, the President of Ahmednagar District INC Party will have the sole power and was also authorised to take steps in that regard. The appellant conveniently framed the rules giving effect to some part of the resolution while ignoring other part thereof. We are therefore of the view that the so-called reliance placed on the said Rules would not be of any assistance to the case of the appellant.21. It will be relevant to refer to the following observations of this Court in the case of Sunil Haribhau Kale v. Avinash Gulabrao Mardikar and others (2015) 11 SCC 403 10. The definition of the term leader very clearly shows that where a munici- pal party is an aghadi, its leader has to be chosen by the aghadi or front. Neces- sarily, any change in the leader of the municipal party is to be effected by the aghadi and not by any outsider. Once the Rules provide for the election of the Group Leader, it has to be done in that manner only and not in any other manner, even when there is change of the leader. The change of leader has to be in the same democratic process of in- duction, in the absence of any other method prescribed under the Rules con- cerned.11. Once an aghadi (group) is formed and duly recognised by the Divisional Commis- sioner, it becomes a municipal party in terms of Section 2(i) of the Act. Once origi- nal political parties form a municipal party by way of an aghadi, for all purposes, the Group Leader is chosen by the municipal party (aghadi) only. The Rules do not pro- vide for nomination of Group Leader. Similarly, the Group Leader of the aghadi can be changed only by the group and not by one of the political parties, big or small, belonging to the aghadi. In a democracy, a leader is not imposed; leader is elected. Once the birth of a leader in a group is by way of election by the group, the Group Leader thus elected cannot be replaced other- wise than through the very same process of the election in the group, in the ab- sence of any rules to the contra. No doubt, Nationalist Congress Party has 17 members in the aghadi (group). That does not mean that the said party can impose a Group Leader in the aghadi. Imposition of a Group Leader otherwise than by the demo- cratic process cuts at the roots of the democracy and certainly it is in violation of the Rules. It is always open to the original political parties to have their respective leaders in the aghadi. However, as far as Group Leader is concerned, he has to be elected by the aghadi (group).22. It could thus be seen that this Court has clearly held that the leader of a municipal party has to be chosen by aghadi or front and not by any outsider. It has been held by this Court that the change of leader has to be in the same democratic process of induction, in the absence of any other method prescribed under the Rules concerned. It has further been held that once the birth of a leader in a group is by way of election by the group, the Group Leader thus elected cannot be replaced otherwise than through the very same process of the election in the group, in the absence of any rules to the contra. It has been clearly held that imposition of a Group Leader otherwise than by the democratic process cuts at the roots of the democracy and certainly it is in violation of the Rules.23. Though it is sought to be urged by Shri Shekhar Naphade, learned Senior Counsel that the appellant has been removed and respondent No.3 has been appointed as Group Leader by an outsider i.e. the President of Ahmednagar District INC Party,we are unable to accept the said contention. The election of the appellant as Group Leader was under the resolution in the meeting attended by all the four elected members and the said meeting was only chaired by the President of the Ahmednagar District INC Party. Similarly, the removal of the appellant and appointment of respondent No.3 is by INCPS Party, however, consisting of three members since the appellant had chosen the different path.24. Somewhat similar observations have been made by this Court in the case of Bhanumati and others v. State of Uttar Pradesh and others (2010) 12 SCC 1 albeit with regard to the provisions of no confidence motion, which are as under:58. These institutions must run on demo- cratic principles. In democracy all persons heading public bodies can continue pro- vided they enjoy the confidence of the per- sons who comprise such bodies. This is the essence of democratic republicanism…..25. In the case of Usha Bharti v. State of Uttar Pradesh and others (2014) 7 SCC 663 , a challenge was made with regard to the validity of Section 28 of the U.P. Kshettra Panchayat mand Zilla Panchayats Act, 1961, which made a provision for no confidence against Chairperson of Zilla Panchayat to be not consistent with Part IX and, in particular, Article 243N of the Constitution of India. Negating the said contention/challenge, this Court in Usha Bharti (supra) observed thus:31. We also do not find any merit in the submission of Mr Bhushan that permitting the provision contained in Section 28 of the Act to remain on the statute book would enable the executive to deprive the elected representatives of their fundamental rights enshrined in Part III and Part IX of the Constitution of India. In our opinion, the ratio of the judgment in I.R. Coelho [(2007) 2 SCC 1] relied upon by Mr Bhushan is wholly inapplicable in the facts and cir- cumstances of this case. There is no inter- ference whatsoever in the right of the elec- torate to choose. Rather Section 28 en- sures that an elected representative can only stay in power so long as such per- son enjoys the support of the majority of the elected members of the Zila Pan- chayat. In the present case, at the time of election, the petitioner was the cho- sen one, but, at the time when the mo- tion of no-confidence in the petitioner was passed, she was not wanted. There- fore, the right to choose of the elec- torate, is very much alive as a conse- quence of the provision contained in Section 28.26. This Court upheld the provisions of Section 28 which ensured that an elected representative can only stay in power so long as such person enjoys the support of the majority of the elected members of the Zila Panchayat. As soon as such a person loses the confidence of the majority, he becomes unwanted. In a democratic set up, the will of the majority has to prevail.27. The appellant was elected as Gatneta when she enjoyed the support of all the members of INCPS Party. However, after she decided to walk on a different path, she lost the support of majority of the INCPS Party and as such, could not have thrust her leadership on the majority. No doubt, that the said Act and the said Rules are in tune with the provisions contained in the Tenth Schedule of the Constitution of India, so as to prevent horse-trading and maintain purity in the political system but, at the same time, the provisions cannot be interpreted in a manner that one person in minority will thrust himself/herself upon the other members who are in absolute majority.28. We are amazed to hear the argument of horse- trading from the mouth of the appellant. It is the appellant who has acted contrary to the wishes of the Party and chose to contest the election of the Chairman of the Panchayat Samiti with the support of the rival group. It is for anybody to guess as to who has indulged in horse-trading. | 0 | 5,530 | 2,044 | ### Instruction:
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elected cannot be replaced other- wise than through the very same process of the election in the group, in the ab- sence of any rules to the contra. No doubt, Nationalist Congress Party has 17 members in the aghadi (group). That does not mean that the said party can impose a Group Leader in the aghadi. Imposition of a Group Leader otherwise than by the demo- cratic process cuts at the roots of the democracy and certainly it is in violation of the Rules. It is always open to the original political parties to have their respective leaders in the aghadi. However, as far as Group Leader is concerned, he has to be elected by the aghadi (group). [emphasis supplied] 22. It could thus be seen that this Court has clearly held that the leader of a municipal party has to be chosen by aghadi or front and not by any outsider. It has been held by this Court that the change of leader has to be in the same democratic process of induction, in the absence of any other method prescribed under the Rules concerned. It has further been held that once the birth of a leader in a group is by way of election by the group, the Group Leader thus elected cannot be replaced otherwise than through the very same process of the election in the group, in the absence of any rules to the contra. It has been clearly held that imposition of a Group Leader otherwise than by the democratic process cuts at the roots of the democracy and certainly it is in violation of the Rules. 23. Though it is sought to be urged by Shri Shekhar Naphade, learned Senior Counsel that the appellant has been removed and respondent No.3 has been appointed as Group Leader by an outsider i.e. the President of Ahmednagar District INC Party, we are unable to accept the said contention. The election of the appellant as Group Leader was under the resolution in the meeting attended by all the four elected members and the said meeting was only chaired by the President of the Ahmednagar District INC Party. Similarly, the removal of the appellant and appointment of respondent No.3 is by INCPS Party, however, consisting of three members since the appellant had chosen the different path. 24. Somewhat similar observations have been made by this Court in the case of Bhanumati and others v. State of Uttar Pradesh and others (2010) 12 SCC 1 albeit with regard to the provisions of no confidence motion, which are as under: 58. These institutions must run on demo- cratic principles. In democracy all persons heading public bodies can continue pro- vided they enjoy the confidence of the per- sons who comprise such bodies. This is the essence of democratic republicanism….. 25. In the case of Usha Bharti v. State of Uttar Pradesh and others (2014) 7 SCC 663 , a challenge was made with regard to the validity of Section 28 of the U.P. Kshettra Panchayat mand Zilla Panchayats Act, 1961, which made a provision for no confidence against Chairperson of Zilla Panchayat to be not consistent with Part IX and, in particular, Article 243N of the Constitution of India. Negating the said contention/challenge, this Court in Usha Bharti (supra) observed thus: 31. We also do not find any merit in the submission of Mr Bhushan that permitting the provision contained in Section 28 of the Act to remain on the statute book would enable the executive to deprive the elected representatives of their fundamental rights enshrined in Part III and Part IX of the Constitution of India. In our opinion, the ratio of the judgment in I.R. Coelho [(2007) 2 SCC 1] relied upon by Mr Bhushan is wholly inapplicable in the facts and cir- cumstances of this case. There is no inter- ference whatsoever in the right of the elec- torate to choose. Rather Section 28 en- sures that an elected representative can only stay in power so long as such per- son enjoys the support of the majority of the elected members of the Zila Pan- chayat. In the present case, at the time of election, the petitioner was the cho- sen one, but, at the time when the mo- tion of no-confidence in the petitioner was passed, she was not wanted. There- fore, the right to choose of the elec- torate, is very much alive as a conse- quence of the provision contained in Section 28. [emphasis supplied] 26. This Court upheld the provisions of Section 28 which ensured that an elected representative can only stay in power so long as such person enjoys the support of the majority of the elected members of the Zila Panchayat. As soon as such a person loses the confidence of the majority, he becomes unwanted. In a democratic set up, the will of the majority has to prevail. 27. The appellant was elected as Gatneta when she enjoyed the support of all the members of INCPS Party. However, after she decided to walk on a different path, she lost the support of majority of the INCPS Party and as such, could not have thrust her leadership on the majority. No doubt, that the said Act and the said Rules are in tune with the provisions contained in the Tenth Schedule of the Constitution of India, so as to prevent horse-trading and maintain purity in the political system but, at the same time, the provisions cannot be interpreted in a manner that one person in minority will thrust himself/herself upon the other members who are in absolute majority. 28. We are amazed to hear the argument of horse- trading from the mouth of the appellant. It is the appellant who has acted contrary to the wishes of the Party and chose to contest the election of the Chairman of the Panchayat Samiti with the support of the rival group. It is for anybody to guess as to who has indulged in horse-trading.
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0
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group is by way of election by the group, the Group Leader thus elected cannot be replaced other- wise than through the very same process of the election in the group, in the ab- sence of any rules to the contra. No doubt, Nationalist Congress Party has 17 members in the aghadi (group). That does not mean that the said party can impose a Group Leader in the aghadi. Imposition of a Group Leader otherwise than by the demo- cratic process cuts at the roots of the democracy and certainly it is in violation of the Rules. It is always open to the original political parties to have their respective leaders in the aghadi. However, as far as Group Leader is concerned, he has to be elected by the aghadi (group).22. It could thus be seen that this Court has clearly held that the leader of a municipal party has to be chosen by aghadi or front and not by any outsider. It has been held by this Court that the change of leader has to be in the same democratic process of induction, in the absence of any other method prescribed under the Rules concerned. It has further been held that once the birth of a leader in a group is by way of election by the group, the Group Leader thus elected cannot be replaced otherwise than through the very same process of the election in the group, in the absence of any rules to the contra. It has been clearly held that imposition of a Group Leader otherwise than by the democratic process cuts at the roots of the democracy and certainly it is in violation of the Rules.23. Though it is sought to be urged by Shri Shekhar Naphade, learned Senior Counsel that the appellant has been removed and respondent No.3 has been appointed as Group Leader by an outsider i.e. the President of Ahmednagar District INC Party,we are unable to accept the said contention. The election of the appellant as Group Leader was under the resolution in the meeting attended by all the four elected members and the said meeting was only chaired by the President of the Ahmednagar District INC Party. Similarly, the removal of the appellant and appointment of respondent No.3 is by INCPS Party, however, consisting of three members since the appellant had chosen the different path.24. Somewhat similar observations have been made by this Court in the case of Bhanumati and others v. State of Uttar Pradesh and others (2010) 12 SCC 1 albeit with regard to the provisions of no confidence motion, which are as under:58. These institutions must run on demo- cratic principles. In democracy all persons heading public bodies can continue pro- vided they enjoy the confidence of the per- sons who comprise such bodies. This is the essence of democratic republicanism…..25. In the case of Usha Bharti v. State of Uttar Pradesh and others (2014) 7 SCC 663 , a challenge was made with regard to the validity of Section 28 of the U.P. Kshettra Panchayat mand Zilla Panchayats Act, 1961, which made a provision for no confidence against Chairperson of Zilla Panchayat to be not consistent with Part IX and, in particular, Article 243N of the Constitution of India. Negating the said contention/challenge, this Court in Usha Bharti (supra) observed thus:31. We also do not find any merit in the submission of Mr Bhushan that permitting the provision contained in Section 28 of the Act to remain on the statute book would enable the executive to deprive the elected representatives of their fundamental rights enshrined in Part III and Part IX of the Constitution of India. In our opinion, the ratio of the judgment in I.R. Coelho [(2007) 2 SCC 1] relied upon by Mr Bhushan is wholly inapplicable in the facts and cir- cumstances of this case. There is no inter- ference whatsoever in the right of the elec- torate to choose. Rather Section 28 en- sures that an elected representative can only stay in power so long as such per- son enjoys the support of the majority of the elected members of the Zila Pan- chayat. In the present case, at the time of election, the petitioner was the cho- sen one, but, at the time when the mo- tion of no-confidence in the petitioner was passed, she was not wanted. There- fore, the right to choose of the elec- torate, is very much alive as a conse- quence of the provision contained in Section 28.26. This Court upheld the provisions of Section 28 which ensured that an elected representative can only stay in power so long as such person enjoys the support of the majority of the elected members of the Zila Panchayat. As soon as such a person loses the confidence of the majority, he becomes unwanted. In a democratic set up, the will of the majority has to prevail.27. The appellant was elected as Gatneta when she enjoyed the support of all the members of INCPS Party. However, after she decided to walk on a different path, she lost the support of majority of the INCPS Party and as such, could not have thrust her leadership on the majority. No doubt, that the said Act and the said Rules are in tune with the provisions contained in the Tenth Schedule of the Constitution of India, so as to prevent horse-trading and maintain purity in the political system but, at the same time, the provisions cannot be interpreted in a manner that one person in minority will thrust himself/herself upon the other members who are in absolute majority.28. We are amazed to hear the argument of horse- trading from the mouth of the appellant. It is the appellant who has acted contrary to the wishes of the Party and chose to contest the election of the Chairman of the Panchayat Samiti with the support of the rival group. It is for anybody to guess as to who has indulged in horse-trading.
|
Thakur Mohd. Ismail Vs. Thakur Sabir Ali | 18 of the Act, and it would in our opinion require no persuasion to hold that the authority which was framing the Act could not have possibly intended that provision by wakf for ones children was provision for religious or charitable uses. The view taken by the Privy Council in Abul Fata Mahomed Ishaks case, 22 Ind App 76 (PC) clearly shows that the authority responsible for the Act could never contemplate wakfs in which the beneficiaries were the descendants of the wakif as wakfs for religious or charitable purposes. Further, the Act applies, as we have already mentioned not only to Mahomedan talukdars but talukdars of all religions and it could hardly be intended when the words "religious or charitable uses" were used in S. 18 that a wakf in which the beneficiaries were in the main the descendants of the wakif would be included in S. 18. Such wakfs could never be considered to be for charitable or religious purposes under Hindu law or the Christian law. In these circumstances it must be held that the wakf in the present case, though in theory it vests the property in God Almighty, is not for charitable or religious purposes. It must therefore be treated as a gift to God Almighty in which however for generations to come God Almighty would have no beneficial ownership. Nor do we think that the Wakf Validating Act of 1913 makes any difference to this position. That Act specifically provides by S. 3 that a Muslim can lawfully create a wakf-alal-aulad. This however does not mean that the purpose of such a wakf is a religious or charitable purpose. This is made clear by the proviso to S. 3, which provides that the ultimate benefit in such a case must be for a religious or charitable purpose. The proviso would have been unnecessary if the purpose of a wakf-alal-aulad was recognised as religious or charitable by this law. The same in our opinion will follow from the provision in S. 4.13. In such a case S. 12 must invalidate this wakf. As we have already said, S. 12 provides the rule against perpetuity; but it is said that the rule against perpetuity provided in this Section is not infringed by this wakf because the property is vested in God immediately when the wakf-alal-aulad is created and all that S.12 requires is that the vesting of the property transferred should not be delayed beyond a certain period. It is urged that in this case the vesting takes place immediately on the making of the wakf and therefore the gift is not covered by S. 12. This immediately raises the question as to what is meant by vesting under S. 12.It may be conceded that property included in a wakf-alal-aulad vests in God Almighty, but the vesting that S. 12 says may not be delayed beyond a certain period is in our opinion absorute vesting (i.e., vesting of both legal and beneficial estate) which may not be delayed beyond a certain period. Such absolute vesting mvolves that the person in whom the property is vested can deal with it as he likes and can deal with its usufruct also as he likes. If the person in whom the property may be regaily vested cannot deal with the usufruct as he likes, there is not that absolute vesting of the property in him which the rule against perpetuity enshrined in S.12 requires. If this were not so, it will be quite easy to get round the rule against perpetuity by creating a trust in which the property immediately vests in the trustee and then providing for beneficial enjoyment in perpetuity by other persons in whom the property never vests. It is well settled that a trust of this kind immediately vesting the property in the trustee leaving the usufruct tied up forever for the benefit of other persons infringes the rule against perpetuity. We may in this connection refer to a passage from Underhills "Law of Trusts and Trustees", tenth edition, dealing with the Rule against Perpetuities at p. 70, which is in these terms:-"It is against public policy that property should be settled on private trusts for an indefinite period, so as to prevent it being freely dealt with; and, consequently, the power of so doing has been curtailed by a rule known as the rule against perpetuities. That rule is, that every future limitation (whether by way of executory devise or trust) of real or personal property, the vesting of which absolutely as to personality, or in fee or tail as to realty, is postponed beyond lives in being and twenty-one years afterwards (with a further period of gestation where it exists) is void."Even though therefore the property may vest in God immediately on the creation of the wakf-alal-aulad in this case, as the beneficial enjoyment thereof is not for the purposes of God i.e. religious or charitable purposes, the vesting which is envisaged by S. 12 is undoubtedly postponed in this case beyond the period allowed by that Section. Therefore, the wakf in this case even though it may be treated as a gift to God legally vesting property in Him immediately on its execution is hit by S. 12, for the absolute vesting which that Section contemplates is postponed beyond the period mentioned in that Section. The view therefore taken by the High Court that the wakf in this case is hit by S. 12 of the Act is correct.14. Finally, it was urged that at any rate, so long as the appellant Mohd. Ismail is alive the plaintiff-respondent could not claim possession and therefore the decree of the High Court to that extent was wrong. We have not been able to appreciate this contention at all. Once the wakf fails as a whole, as we hold that it does, Mohd. Ismail cannot claim to remain in possession, for his right to remain in possession depends upon his being mutawalli of the wakf. | 0[ds]It is clear therefore that the Act was made to define the rights of holders of talukdari estates and to regulate the succession thereto and the provisions in the Act being a complete Code relating to the special class of persons in respect of the properties conferred upon them by the British Government, whatever rights the talukdars had in the property conferred on them would have to be found in the Act and would be circumscribed by itswill be seen that there is one difference between S. 13 which deals with gifts for purpose other than religious and charitable and S. 18 which deals with gifts for religious and charitable uses inasmuch as delivery of possession is not made necessary for the validity of the gift under S. 18 as is the case in S. 13 (2). The rest of the Act deals with intestate succession and other matters with which however we are notcan see no validity in the first contention on behalf of the appellant, namely, that a wakaf-alal-aulad is entirely outside the purview of the Act and the provisions of the Act will not apply to it and it will be valid in view of the Act VI of 1913. It is not disputed that the property with which the wakf-alal-aulad in this case deals is property which would be governed by the Act. We have already said that the Act is a special Act affecting special class of persons in respect of the properties conferred upon them by the British Government and is a self-contained and complete code in regard to the matters contained in it. Therefore, so far as the property which comes under the Act is concerned we must find power in the Act conferred on the talukdar to deal with the property,and it cannot be accepted that the talukdar can deal with the property which is governed by the Act in any manner not provided by the Act. If the creation of a wakf-alal-aulad is outside the purview of the Act it will be clear that any wakf-alal-aulad dealing with property which is governed by the Act would immediately be invalid so far as that property is concerned, for the property conferred on the talukdar which is governed by the Act can only be dealt with as provided in the Act and not otherwise, the Act being a complete Code with respect to the rights of the talukdar to deal with such property. On the argument therefore that a wakf-alal-aulad is a manner of dealing with the property which is entirely outside the Act, the wakf must fail at once so far as it deals with property governed by the Act.10. But we are of opinion that the contention that a wakf-alal-aulad is something which is entirely outside the purview of the Act, even though it may deal with property governed by the Act cannot be accepted. A wakf-alal-aulad must by its very nature be some kind of transfer of property by the person making the wakf. Previous to Act VI of 1913 the Privy Council had held in Abul Fata Mahomed Ishak v. Russomoy Chowdhry 22 Ind App 76 (PC) that "under Mahomedan law a perpetual family settlement expressly made as wakf is not legal merely because there is an ultimate but illusory gift to the poor". It was because of this judgment by which wakfs-ala1-aulad as known to Mahomedan law were declared illegal that Act VI of 1913 was passed by which such wakfs became legal. Obviously, therefore, when such was became legal there was a transfer of the property covered by the wakf and the transfer was in favour of God Almighty in whom thereafter the property subject to wakf became vested. This follows from the theory of Mahomedan law under which wakfs created for purposes which are considered by that law to be religious and charitable result in the transfer of ownership of wakf property in perpetuity to God Almighty, Further the transfer being without consideration can only amount to a gift,Therefore wakfs-alal-aulad which have become valid after Act VI of 1913 must be held to be gifts of property to God Almighty for certain purposes and are clearly transfers within the meaning of that term in S. 2 of the Act. Incidentally we may add that the use of the words "inter vivos" in the definition of the word "transfer merely emphasises that the transfer must be one effective during the life-time of the transferor as contrasted with a transfer by will which takes effect on the death of the transferor. Whenever therefore a transfer takes place by a wakf-alal-aulad and the property, included in the deed is governed by the provisions of the Act we have to go to the provisions contained in the Act with respect to the power of the talukdar to make such transfer. The transfer would only be valid if it is within the powers conferred on theare however of opinion that S. 18 only provides for the procedure for making gifts for charitable and religious purposes while S. 13 provides for the procedure for making gifts to other persons for other purposes. The power of the talukdar to make a gift is to be found in S.11, the manner in which he can make a gift is to be found in S. 13 for one class of gifts and in S. 18 for another class of gifts. Therefore we cannot accept the argument that S. 18 is an independent Section fully providing for gifts of a charitable and religious nature; it is merely A Procedural Provision for gifts of the type covered by it. But even if, the argument of the learned counsel for the appellant were correct that S. 18 is an independent provision relating to gifts for charitable or religious purposes, the gifts made under S. 18 would still be subject to S. 12, as S. 12 opens with the words "no transfer or bequest under this Act shall be valid." Therefore even if S. 18 were an independent Section it still deals with a transfer of a particular type under the Act and that transfer would also be subject to S. 12, We may in this connection refer to S. 18 of the Transfer of Property Act (No. 4 of 1882) which specifically provides that the rule against perpeuity (S. 14 of the Transfer of Property Act) shall not apply to a transfer "for the benefit of the public in the advancement of religion, knowledge, commerce, health, safety or any other object beneficial to mankind". Section 18 of the Act however provides no such exception so far as religious or charitable gifts made under the Act are concerned and such gifts are also subject to S.words with which we are concerned are "religious or charitable uses" which appear in S. 18 of the Act, and it would in our opinion require no persuasion to hold that the authority which was framing the Act could not have possibly intended that provision by wakf for ones children was provision for religious or charitable uses. The view taken by the Privy Council in Abul Fata Mahomed Ishaks case, 22 Ind App 76 (PC) clearly shows that the authority responsible for the Act could never contemplate wakfs in which the beneficiaries were the descendants of the wakif as wakfs for religious or charitable purposes. Further, the Act applies, as we have already mentioned not only to Mahomedan talukdars but talukdars of all religions and it could hardly be intended when the words "religious or charitable uses" were used in S. 18 that a wakf in which the beneficiaries were in the main the descendants of the wakif would be included in S. 18. Such wakfs could never be considered to be for charitable or religious purposes under Hindu law or the Christian law. In these circumstances it must be held that the wakf in the present case, though in theory it vests the property in God Almighty, is not for charitable or religious purposes. It must therefore be treated as a gift to God Almighty in which however for generations to come God Almighty would have no beneficial ownership. Nor do we think that the Wakf Validating Act of 1913 makes any difference to this position. That Act specifically provides by S. 3 that a Muslim can lawfully create a wakf-alal-aulad. This however does not mean that the purpose of such a wakf is a religious or charitable purpose. This is made clear by the proviso to S. 3, which provides that the ultimate benefit in such a case must be for a religious or charitable purpose. The proviso would have been unnecessary if the purpose of a wakf-alal-aulad was recognised as religious or charitable by this law. The same in our opinion will follow from the provision in S. 4.13. In such a case S. 12 must invalidate this wakf. As we have already said, S. 12 provides the rule against perpetuity; but it is said that the rule against perpetuity provided in this Section is not infringed by this wakf because the property is vested in God immediately when the wakf-alal-aulad is created and all that S.12 requires is that the vesting of the property transferred should not be delayed beyond a certain period. It is urged that in this case the vesting takes place immediately on the making of the wakf and therefore the gift is not covered by S. 12. This immediately raises the question as to what is meant by vesting under S. 12.It may be conceded that property included in a wakf-alal-aulad vests in God Almighty, but the vesting that S. 12 says may not be delayed beyond a certain period is in our opinion absorute vesting (i.e., vesting of both legal and beneficial estate) which may not be delayed beyond a certain period. Such absolute vesting mvolves that the person in whom the property is vested can deal with it as he likes and can deal with its usufruct also as he likes. If the person in whom the property may be regaily vested cannot deal with the usufruct as he likes, there is not that absolute vesting of the property in him which the rule against perpetuity enshrined in S.12 requires. If this were not so, it will be quite easy to get round the rule against perpetuity by creating a trust in which the property immediately vests in the trustee and then providing for beneficial enjoyment in perpetuity by other persons in whom the property never vests. It is well settled that a trust of this kind immediately vesting the property in the trustee leaving the usufruct tied up forever for the benefit of other persons infringes the rule againstthough therefore the property may vest in God immediately on the creation of the wakf-alal-aulad in this case, as the beneficial enjoyment thereof is not for the purposes of God i.e. religious or charitable purposes, the vesting which is envisaged by S. 12 is undoubtedly postponed in this case beyond the period allowed by that Section. Therefore, the wakf in this case even though it may be treated as a gift to God legally vesting property in Him immediately on its execution is hit by S. 12, for the absolute vesting which that Section contemplates is postponed beyond the period mentioned in that Section. The view therefore taken by the High Court that the wakf in this case is hit by S. 12 of the Act is correct.14. Finally, it was urged that at any rate, so long as the appellant Mohd. Ismail is alive the plaintiff-respondent could not claim possession and therefore the decree of the High Court to that extent was wrong. We have not been able to appreciate this contention at all. Once the wakf fails as a whole, as we hold that it does, Mohd. Ismail cannot claim to remain in possession, for his right to remain in possession depends upon his being mutawalli of the wakf. | 0 | 5,537 | 2,137 | ### Instruction:
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18 of the Act, and it would in our opinion require no persuasion to hold that the authority which was framing the Act could not have possibly intended that provision by wakf for ones children was provision for religious or charitable uses. The view taken by the Privy Council in Abul Fata Mahomed Ishaks case, 22 Ind App 76 (PC) clearly shows that the authority responsible for the Act could never contemplate wakfs in which the beneficiaries were the descendants of the wakif as wakfs for religious or charitable purposes. Further, the Act applies, as we have already mentioned not only to Mahomedan talukdars but talukdars of all religions and it could hardly be intended when the words "religious or charitable uses" were used in S. 18 that a wakf in which the beneficiaries were in the main the descendants of the wakif would be included in S. 18. Such wakfs could never be considered to be for charitable or religious purposes under Hindu law or the Christian law. In these circumstances it must be held that the wakf in the present case, though in theory it vests the property in God Almighty, is not for charitable or religious purposes. It must therefore be treated as a gift to God Almighty in which however for generations to come God Almighty would have no beneficial ownership. Nor do we think that the Wakf Validating Act of 1913 makes any difference to this position. That Act specifically provides by S. 3 that a Muslim can lawfully create a wakf-alal-aulad. This however does not mean that the purpose of such a wakf is a religious or charitable purpose. This is made clear by the proviso to S. 3, which provides that the ultimate benefit in such a case must be for a religious or charitable purpose. The proviso would have been unnecessary if the purpose of a wakf-alal-aulad was recognised as religious or charitable by this law. The same in our opinion will follow from the provision in S. 4.13. In such a case S. 12 must invalidate this wakf. As we have already said, S. 12 provides the rule against perpetuity; but it is said that the rule against perpetuity provided in this Section is not infringed by this wakf because the property is vested in God immediately when the wakf-alal-aulad is created and all that S.12 requires is that the vesting of the property transferred should not be delayed beyond a certain period. It is urged that in this case the vesting takes place immediately on the making of the wakf and therefore the gift is not covered by S. 12. This immediately raises the question as to what is meant by vesting under S. 12.It may be conceded that property included in a wakf-alal-aulad vests in God Almighty, but the vesting that S. 12 says may not be delayed beyond a certain period is in our opinion absorute vesting (i.e., vesting of both legal and beneficial estate) which may not be delayed beyond a certain period. Such absolute vesting mvolves that the person in whom the property is vested can deal with it as he likes and can deal with its usufruct also as he likes. If the person in whom the property may be regaily vested cannot deal with the usufruct as he likes, there is not that absolute vesting of the property in him which the rule against perpetuity enshrined in S.12 requires. If this were not so, it will be quite easy to get round the rule against perpetuity by creating a trust in which the property immediately vests in the trustee and then providing for beneficial enjoyment in perpetuity by other persons in whom the property never vests. It is well settled that a trust of this kind immediately vesting the property in the trustee leaving the usufruct tied up forever for the benefit of other persons infringes the rule against perpetuity. We may in this connection refer to a passage from Underhills "Law of Trusts and Trustees", tenth edition, dealing with the Rule against Perpetuities at p. 70, which is in these terms:-"It is against public policy that property should be settled on private trusts for an indefinite period, so as to prevent it being freely dealt with; and, consequently, the power of so doing has been curtailed by a rule known as the rule against perpetuities. That rule is, that every future limitation (whether by way of executory devise or trust) of real or personal property, the vesting of which absolutely as to personality, or in fee or tail as to realty, is postponed beyond lives in being and twenty-one years afterwards (with a further period of gestation where it exists) is void."Even though therefore the property may vest in God immediately on the creation of the wakf-alal-aulad in this case, as the beneficial enjoyment thereof is not for the purposes of God i.e. religious or charitable purposes, the vesting which is envisaged by S. 12 is undoubtedly postponed in this case beyond the period allowed by that Section. Therefore, the wakf in this case even though it may be treated as a gift to God legally vesting property in Him immediately on its execution is hit by S. 12, for the absolute vesting which that Section contemplates is postponed beyond the period mentioned in that Section. The view therefore taken by the High Court that the wakf in this case is hit by S. 12 of the Act is correct.14. Finally, it was urged that at any rate, so long as the appellant Mohd. Ismail is alive the plaintiff-respondent could not claim possession and therefore the decree of the High Court to that extent was wrong. We have not been able to appreciate this contention at all. Once the wakf fails as a whole, as we hold that it does, Mohd. Ismail cannot claim to remain in possession, for his right to remain in possession depends upon his being mutawalli of the wakf.
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were an independent Section it still deals with a transfer of a particular type under the Act and that transfer would also be subject to S. 12, We may in this connection refer to S. 18 of the Transfer of Property Act (No. 4 of 1882) which specifically provides that the rule against perpeuity (S. 14 of the Transfer of Property Act) shall not apply to a transfer "for the benefit of the public in the advancement of religion, knowledge, commerce, health, safety or any other object beneficial to mankind". Section 18 of the Act however provides no such exception so far as religious or charitable gifts made under the Act are concerned and such gifts are also subject to S.words with which we are concerned are "religious or charitable uses" which appear in S. 18 of the Act, and it would in our opinion require no persuasion to hold that the authority which was framing the Act could not have possibly intended that provision by wakf for ones children was provision for religious or charitable uses. The view taken by the Privy Council in Abul Fata Mahomed Ishaks case, 22 Ind App 76 (PC) clearly shows that the authority responsible for the Act could never contemplate wakfs in which the beneficiaries were the descendants of the wakif as wakfs for religious or charitable purposes. Further, the Act applies, as we have already mentioned not only to Mahomedan talukdars but talukdars of all religions and it could hardly be intended when the words "religious or charitable uses" were used in S. 18 that a wakf in which the beneficiaries were in the main the descendants of the wakif would be included in S. 18. Such wakfs could never be considered to be for charitable or religious purposes under Hindu law or the Christian law. In these circumstances it must be held that the wakf in the present case, though in theory it vests the property in God Almighty, is not for charitable or religious purposes. It must therefore be treated as a gift to God Almighty in which however for generations to come God Almighty would have no beneficial ownership. Nor do we think that the Wakf Validating Act of 1913 makes any difference to this position. That Act specifically provides by S. 3 that a Muslim can lawfully create a wakf-alal-aulad. This however does not mean that the purpose of such a wakf is a religious or charitable purpose. This is made clear by the proviso to S. 3, which provides that the ultimate benefit in such a case must be for a religious or charitable purpose. The proviso would have been unnecessary if the purpose of a wakf-alal-aulad was recognised as religious or charitable by this law. The same in our opinion will follow from the provision in S. 4.13. In such a case S. 12 must invalidate this wakf. As we have already said, S. 12 provides the rule against perpetuity; but it is said that the rule against perpetuity provided in this Section is not infringed by this wakf because the property is vested in God immediately when the wakf-alal-aulad is created and all that S.12 requires is that the vesting of the property transferred should not be delayed beyond a certain period. It is urged that in this case the vesting takes place immediately on the making of the wakf and therefore the gift is not covered by S. 12. This immediately raises the question as to what is meant by vesting under S. 12.It may be conceded that property included in a wakf-alal-aulad vests in God Almighty, but the vesting that S. 12 says may not be delayed beyond a certain period is in our opinion absorute vesting (i.e., vesting of both legal and beneficial estate) which may not be delayed beyond a certain period. Such absolute vesting mvolves that the person in whom the property is vested can deal with it as he likes and can deal with its usufruct also as he likes. If the person in whom the property may be regaily vested cannot deal with the usufruct as he likes, there is not that absolute vesting of the property in him which the rule against perpetuity enshrined in S.12 requires. If this were not so, it will be quite easy to get round the rule against perpetuity by creating a trust in which the property immediately vests in the trustee and then providing for beneficial enjoyment in perpetuity by other persons in whom the property never vests. It is well settled that a trust of this kind immediately vesting the property in the trustee leaving the usufruct tied up forever for the benefit of other persons infringes the rule againstthough therefore the property may vest in God immediately on the creation of the wakf-alal-aulad in this case, as the beneficial enjoyment thereof is not for the purposes of God i.e. religious or charitable purposes, the vesting which is envisaged by S. 12 is undoubtedly postponed in this case beyond the period allowed by that Section. Therefore, the wakf in this case even though it may be treated as a gift to God legally vesting property in Him immediately on its execution is hit by S. 12, for the absolute vesting which that Section contemplates is postponed beyond the period mentioned in that Section. The view therefore taken by the High Court that the wakf in this case is hit by S. 12 of the Act is correct.14. Finally, it was urged that at any rate, so long as the appellant Mohd. Ismail is alive the plaintiff-respondent could not claim possession and therefore the decree of the High Court to that extent was wrong. We have not been able to appreciate this contention at all. Once the wakf fails as a whole, as we hold that it does, Mohd. Ismail cannot claim to remain in possession, for his right to remain in possession depends upon his being mutawalli of the wakf.
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Messrs. Associated Clothiers Ltd Vs. Commissioner Of Income-Tax, Calcutta | the business does not give rise to a sale in a commercial sense. The present is not a case in which persons carrying on business have floated a private limited company and have attempted to readjust their business position. Here is a case in which the assets of one company have been sold to another. The question to which attention must be directed is whether there was by the agreement a transaction of sale in a commercial sense. 11. In a recent judgment of this Court in Chittoor Motor Transport Co. (P) Ltd. v. Income-tax Officer, Chittoor, (1966) 59 ITR 238 : (AIR 1966 SC 570 ) it was held by this Court that where a private limited company transferred some of its assets to a partnership consisting of three shareholders who held the entire issue of shares of the company for a consideration, but the whole business was not transferred. there was in truth a sale within the meaning of Sale of Goods Act and under S. 10(2)(vib) the rebate received by the private limited company would be liable to be forfeited. This Court declined to accept the argument that when the company transferred the vehicles belonging to it to the partnership, there was no commercial transaction. The Court observed at p. 242 (of ITR): (at p. 573 of AIR):"If we look at the resolution dated June : 30, 1959, it is quite clear that it is a sale for consideration of a number of buses by the limited company to the partnership. It would be a sale under the Sale of Goods Act and it would be a sale in any other proper meaning which might be given to the word sale, We are not concerned whether any profit resulted to the assessee but what we are concerned with is whether the assessee had sold or transferred these buses to the partnership. To us the answer seems to be plain that whether the transaction resulted in profit to the company or not, the transaction comes within the purview of the latter part of S. 10(2)(vib)." 12. Counsel for the Company also submitted that the transaction was merely a nominal transaction and the property in the shares remained with the same Company in which it was vested. This contention wag never raised before or decided by the Tribunal, and it does not arise out of the order of the Tribunal. 13. It was then urged that there was no profit to the Company since there was no evidence about the market value of the property transferred and in the absence of any evidence to show that the property was sold for a price exceeding the written down value liability under S. 10(2)(vii) second proviso will not arise. But in the agreement the properties sold were allotted specific values and no attempt was made at any time before the Tribunal to prove that the values so allotted to the various properties were not true. Substantially the whole of the consideration paid by Messrs. Phelps and Co. Ltd. is in the form of shares to the appellant Company, but unless there is evidence that the market value of the shares was lass than their face value, the claim made by the appellant Company must fail. The burden of proving that the consideration for sale of the property was less than what it purports to be under the agreement of sale lay upon the Company and since no attempt was made to prove that fact, the question cannot be raised for the first time in this Court. 14. It was also said that the transfer was a slump sale of the assets and there being no separate sale of the property described in the second schedule, the difference between the written down value and the cost price was not liable to be included as income in the process of assessment. Reliance in this behalf was placed upon the observations of the Judicial Committee of the Privy Council in Doughty v. Commr. of Taxes, 1927 AC 327. In that case two partners carrying on business as general merchants and drapers sold the entire assets and goodwill of the partnership business to a limited company in which they became the only shareholders. The nominal value of the shares being more than the sum to the credit of the capital account of the partnership in its last balance sheet, a new balance sheet was prepared showing a larger value for the stock in trade The Commissioner of Taxes treated the increase in value so shown as a profit on the sale of the stock in trade, and assessed the appellant upon it for income-tax. The Judicial Committee held that the assessment wet wrongly made since if the transaction was to be treated as a sale there was no separate sale of the stock, and no valuation of it as an item forming part of the aggregate sold. This Court has affirmed the principle in Doughtys case in a recent judgment: Commr, of Income-tax v. Mugneeram Bangur and Co., (1965) 57 ITR 299 AIR 1960) SC 50). 15. That principle has however no application here. In the present case it is true that the entire assets of the appellant Company were sold to Messrs. Phelps and Co. Ltd. There was no separate sale of different items, but the consideration of each item of property sold was expressly mentioned in the agreement of sale. The contention that the transaction of sale was a mere attempt to readjust the business position of the transferor was never raised before the Tribunal and does not arise out of the order of the Tribunal. 16. We decide this appeal on the narrow ground that the appellant Company sold the property in the second schedule for a stated consideration which was not shown to be notional, and since the consideration was in excess of the original cost of the building, the difference was profit within the meaning of S. 10(2)(vii) second proviso. | 0[ds]We must therefore proceed on the view that there is no evidence before the Tribunal and no finding of the Tribunal that after transferring its assets the appellant Company carried on business14. It was also said that the transfer was a slump sale of the assets and there being no separate sale of the property described in the second schedule, the difference between the written down value and the cost price was not liable to be included as income in the process of assessment. Reliance in this behalf was placed upon the observations of the Judicial Committee of the Privy Council in Doughty v. Commr. of Taxes, 1927 AC 327. In that case two partners carrying on business as general merchants and drapers sold the entire assets and goodwill of the partnership business to a limited company in which they became the only shareholders. The nominal value of the shares being more than the sum to the credit of the capital account of the partnership in its last balance sheet, a new balance sheet was prepared showing a larger value for the stock in trade The Commissioner of Taxes treated the increase in value so shown as a profit on the sale of the stock in trade, and assessed the appellant upon it for income-tax. The Judicial Committee held that the assessment wet wrongly made since if the transaction was to be treated as a sale there was no separate sale of the stock, and no valuation of it as an item forming part of the aggregate sold. This Court has affirmed the principle in Doughtys case in a recent judgment: Commr, of Income-tax v. Mugneeram Bangur and Co., (1965) 57 ITR 299 AIR 1960) SC 50)15. That principle has however no application here. In the present case it is true that the entire assets of the appellant Company were sold to Messrs. Phelps and Co. Ltd. There was no separate sale of different items, but the consideration of each item of property sold was expressly mentioned in the agreement of sale. The contention that the transaction of sale was a mere attempt to readjust the business position of the transferor was never raised before the Tribunal and does not arise out of the order of the Tribunal16. We decide this appeal on the narrow ground that the appellant Company sold the property in the second schedule for a stated consideration which was not shown to be notional, and since the consideration was in excess of the original cost of the building, the difference was profit within the meaning of S. 10(2)(vii) second provisoThe Tribunal in deciding the appeal before it observed:"Associated Clothiers Ltd., were owners of a business having assets and liabilities. By sale to Phelps and Co. Ltd. they got the entire ownership by way of shares and the same assets and liabilities remained in the hands of Phelps and Co. Ltd."This Court must accept the statement made by the Tribunal in the statement of the case, especially when no objection was raised thereto before the Tribunal or before the High Court on behalf of the appellant Company at any time10. It is unnecessary for the purpose of this case to express any final opinion on the question, whether in taxing cases it is open to the assessing authority to ignore the corporate personality of a company and to hold that the interest of the shareholders in the shares of a company and on the business of the Company is identical, and transfer by the owners of a business to a Company in which the shares are owned by the former owners of the business does not give rise to a sale in a commercial sense. The present is not a case in which persons carrying on business have floated a private limited company and have attempted to readjust their business position. Here is a case in which the assets of one company have been sold to another.The question to which attention must be directed is whether there was by the agreement a transaction of sale in a commercial senseSubstantially the whole of the consideration paid by Messrs. Phelps and Co. Ltd. is in the form of shares to the appellant Company, but unless there is evidence that the market value of the shares was lass than their face value, the claim made by the appellant Company must fail. The burden of proving that the consideration for sale of the property was less than what it purports to be under the agreement of sale lay upon the Company and since no attempt was made to prove that fact, the question cannot be raised for the first time in this Court. | 0 | 3,617 | 839 | ### Instruction:
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the business does not give rise to a sale in a commercial sense. The present is not a case in which persons carrying on business have floated a private limited company and have attempted to readjust their business position. Here is a case in which the assets of one company have been sold to another. The question to which attention must be directed is whether there was by the agreement a transaction of sale in a commercial sense. 11. In a recent judgment of this Court in Chittoor Motor Transport Co. (P) Ltd. v. Income-tax Officer, Chittoor, (1966) 59 ITR 238 : (AIR 1966 SC 570 ) it was held by this Court that where a private limited company transferred some of its assets to a partnership consisting of three shareholders who held the entire issue of shares of the company for a consideration, but the whole business was not transferred. there was in truth a sale within the meaning of Sale of Goods Act and under S. 10(2)(vib) the rebate received by the private limited company would be liable to be forfeited. This Court declined to accept the argument that when the company transferred the vehicles belonging to it to the partnership, there was no commercial transaction. The Court observed at p. 242 (of ITR): (at p. 573 of AIR):"If we look at the resolution dated June : 30, 1959, it is quite clear that it is a sale for consideration of a number of buses by the limited company to the partnership. It would be a sale under the Sale of Goods Act and it would be a sale in any other proper meaning which might be given to the word sale, We are not concerned whether any profit resulted to the assessee but what we are concerned with is whether the assessee had sold or transferred these buses to the partnership. To us the answer seems to be plain that whether the transaction resulted in profit to the company or not, the transaction comes within the purview of the latter part of S. 10(2)(vib)." 12. Counsel for the Company also submitted that the transaction was merely a nominal transaction and the property in the shares remained with the same Company in which it was vested. This contention wag never raised before or decided by the Tribunal, and it does not arise out of the order of the Tribunal. 13. It was then urged that there was no profit to the Company since there was no evidence about the market value of the property transferred and in the absence of any evidence to show that the property was sold for a price exceeding the written down value liability under S. 10(2)(vii) second proviso will not arise. But in the agreement the properties sold were allotted specific values and no attempt was made at any time before the Tribunal to prove that the values so allotted to the various properties were not true. Substantially the whole of the consideration paid by Messrs. Phelps and Co. Ltd. is in the form of shares to the appellant Company, but unless there is evidence that the market value of the shares was lass than their face value, the claim made by the appellant Company must fail. The burden of proving that the consideration for sale of the property was less than what it purports to be under the agreement of sale lay upon the Company and since no attempt was made to prove that fact, the question cannot be raised for the first time in this Court. 14. It was also said that the transfer was a slump sale of the assets and there being no separate sale of the property described in the second schedule, the difference between the written down value and the cost price was not liable to be included as income in the process of assessment. Reliance in this behalf was placed upon the observations of the Judicial Committee of the Privy Council in Doughty v. Commr. of Taxes, 1927 AC 327. In that case two partners carrying on business as general merchants and drapers sold the entire assets and goodwill of the partnership business to a limited company in which they became the only shareholders. The nominal value of the shares being more than the sum to the credit of the capital account of the partnership in its last balance sheet, a new balance sheet was prepared showing a larger value for the stock in trade The Commissioner of Taxes treated the increase in value so shown as a profit on the sale of the stock in trade, and assessed the appellant upon it for income-tax. The Judicial Committee held that the assessment wet wrongly made since if the transaction was to be treated as a sale there was no separate sale of the stock, and no valuation of it as an item forming part of the aggregate sold. This Court has affirmed the principle in Doughtys case in a recent judgment: Commr, of Income-tax v. Mugneeram Bangur and Co., (1965) 57 ITR 299 AIR 1960) SC 50). 15. That principle has however no application here. In the present case it is true that the entire assets of the appellant Company were sold to Messrs. Phelps and Co. Ltd. There was no separate sale of different items, but the consideration of each item of property sold was expressly mentioned in the agreement of sale. The contention that the transaction of sale was a mere attempt to readjust the business position of the transferor was never raised before the Tribunal and does not arise out of the order of the Tribunal. 16. We decide this appeal on the narrow ground that the appellant Company sold the property in the second schedule for a stated consideration which was not shown to be notional, and since the consideration was in excess of the original cost of the building, the difference was profit within the meaning of S. 10(2)(vii) second proviso.
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We must therefore proceed on the view that there is no evidence before the Tribunal and no finding of the Tribunal that after transferring its assets the appellant Company carried on business14. It was also said that the transfer was a slump sale of the assets and there being no separate sale of the property described in the second schedule, the difference between the written down value and the cost price was not liable to be included as income in the process of assessment. Reliance in this behalf was placed upon the observations of the Judicial Committee of the Privy Council in Doughty v. Commr. of Taxes, 1927 AC 327. In that case two partners carrying on business as general merchants and drapers sold the entire assets and goodwill of the partnership business to a limited company in which they became the only shareholders. The nominal value of the shares being more than the sum to the credit of the capital account of the partnership in its last balance sheet, a new balance sheet was prepared showing a larger value for the stock in trade The Commissioner of Taxes treated the increase in value so shown as a profit on the sale of the stock in trade, and assessed the appellant upon it for income-tax. The Judicial Committee held that the assessment wet wrongly made since if the transaction was to be treated as a sale there was no separate sale of the stock, and no valuation of it as an item forming part of the aggregate sold. This Court has affirmed the principle in Doughtys case in a recent judgment: Commr, of Income-tax v. Mugneeram Bangur and Co., (1965) 57 ITR 299 AIR 1960) SC 50)15. That principle has however no application here. In the present case it is true that the entire assets of the appellant Company were sold to Messrs. Phelps and Co. Ltd. There was no separate sale of different items, but the consideration of each item of property sold was expressly mentioned in the agreement of sale. The contention that the transaction of sale was a mere attempt to readjust the business position of the transferor was never raised before the Tribunal and does not arise out of the order of the Tribunal16. We decide this appeal on the narrow ground that the appellant Company sold the property in the second schedule for a stated consideration which was not shown to be notional, and since the consideration was in excess of the original cost of the building, the difference was profit within the meaning of S. 10(2)(vii) second provisoThe Tribunal in deciding the appeal before it observed:"Associated Clothiers Ltd., were owners of a business having assets and liabilities. By sale to Phelps and Co. Ltd. they got the entire ownership by way of shares and the same assets and liabilities remained in the hands of Phelps and Co. Ltd."This Court must accept the statement made by the Tribunal in the statement of the case, especially when no objection was raised thereto before the Tribunal or before the High Court on behalf of the appellant Company at any time10. It is unnecessary for the purpose of this case to express any final opinion on the question, whether in taxing cases it is open to the assessing authority to ignore the corporate personality of a company and to hold that the interest of the shareholders in the shares of a company and on the business of the Company is identical, and transfer by the owners of a business to a Company in which the shares are owned by the former owners of the business does not give rise to a sale in a commercial sense. The present is not a case in which persons carrying on business have floated a private limited company and have attempted to readjust their business position. Here is a case in which the assets of one company have been sold to another.The question to which attention must be directed is whether there was by the agreement a transaction of sale in a commercial senseSubstantially the whole of the consideration paid by Messrs. Phelps and Co. Ltd. is in the form of shares to the appellant Company, but unless there is evidence that the market value of the shares was lass than their face value, the claim made by the appellant Company must fail. The burden of proving that the consideration for sale of the property was less than what it purports to be under the agreement of sale lay upon the Company and since no attempt was made to prove that fact, the question cannot be raised for the first time in this Court.
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Karan Kapoor Vs. Madhuri Kumar | limitations under the law. However, it is urged that the relationship of the Appellant has now been changed to purchaser on signing the ATS-I by landlord subsequent to lease agreement, therefore the relationship of landlord and tenant extinguishes. Reliance has also been placed on the judgment of Himani Alloys Limited (supra) and it has been urged by Appellant that in case the admission is not of the amount as alleged and not categoric and clear, the decree under Order XII Rule 6 cannot be directed. The case of Hari Steel (supra) has also been relied upon to contend that the relief under Order XII Rule 6 is discretionary and the Court should not deny the valuable right of the Defendant to contest the suit, meaning thereby, the discretion should be used only when there is a clear, categorical and unconditional admission and such right should not be exercised to deny valuable right of a Defendant to contest the claim based on defense taken. Further, relying upon the judgment of Shrimant Shanrao Suryavanshi (supra), it has been contended that when a possession is with the Appellant by virtue of a part performance of agreement to sell as prescribed under Section 53 of the Transfer of Property Act, 1882, he has right to defend or protect his possession. 21. On the other hand, Ms. Meenakshi Arora, learned senior counsel, placed reliance on the judgment of Nagindas Ramdas (supra), inter alia, contending that the admissions if true and clear are the best proof of the fact admitted, it is also stated the admissions in the pleadings or judicial admissions admissible under Section 58 of the Evidence Act, 1872, made by the parties or their agents at or before hearing of the case stands on higher footings than evidentiary admissions. It is binding and constitute the waiver of proof. Learned senior counsel further submits that the judgment of R. Kanthimathi (supra) is distinguishable with the present case. In the said case, after referring the terms of the agreement it reflected that the major amount of sale consideration was paid and only Rs.5,000/- was remaining to be paid. Also, by conveyance the possession of property was surrendered, therefore, Court said that the jural relationship between the persons were changed by way of subsequent agreement subject to the limitations under the law. While in the present case ATS-I was executed on 22.04.2017. In clause 2 of the said agreement, it was specifically mentioned however, no advance – earnest money has been paid to the first party. With respect to possession, it was mentioned that it shall be handed over on spot. Thus, out of the total sale consideration of Rs.3,60,00,000/- nothing was paid and the Appellant was in possession under the Lease Agreement as tenant. The document Annexure P-1 (Advance Receipt-cum Agreement to Sale & Purchase) produced alongwith the paperbook of appeal is a document which has not been produced before the lower Court. Thus, vide order dated 07.10.2021, it was made clear by this Court that the said document be deleted from the paperbook of this case. In view of the said distinction drawn it was urged that judgment of R. Kanthimathi (supra) is of no help to the Appellant. 22. Be that as it may, the arguments advanced by both the sides, in our view can be appreciated by the Trial Court by affording opportunity to them to lead evidence. As per the pleadings, there may be admission to the extent of execution of the Lease Agreement, rate of rent and monthly payment but simultaneously the defense taken by the Defendant is also based on ATS-I, II and III. In view of the contents of those agreements and terms specified therein, the defense as taken by the Appellant/Defendant is plausible or not is a matter of trial which may be appreciated by the Court after granting opportunity to lead evidence by the respective parties. There may be admission with respect to tenancy as per lease agreements but the defense as taken is also required to be looked into by the Court and there is need to decide justiciability of defense by the full-fledged trial. In our view, for the purpose of Order XII Rule 6, the said admission is not clear and categorical, so as to exercise a discretion by the Court without dealing with the defense as taken by Defendant. As we are conscious that any observation made by this Court may affect the merit of either side, therefore, we are not recording any finding either on the issue of tenancy or with respect to the defense as taken by the Defendant. We are only inclined to say whether the judgment and decree passed in exercise of the power under Order XII Rule 6 of CPC is based on clear and categorical admission. In our view, the facts of the case in hand and the judgment in S.M. Asif (supra) are altogether similar, therefore, the ratio of the said judgment rightly applies to the present case. Consequently, the judgment and decree passed by the Trial Court, as confirmed by the High Court, only on admission of fact without considering the defense in exercise of power under Order XII Rule 6 of CPC is hereby set-aside. The matter is remitted back to the Trial Court to decide the suit as expeditiously as possible affording due opportunity to the parties to record evidence that shall be appreciated by the Court on merit. 23. In the present case, the tenant has not paid any amount of rent w.e.f. 07.07.2014. In a suit based on Landlord-Tenant relationship, the amount of rent and arrears thereof ought to be paid in terms of the order of the Court. The said view is fortified by the judgment of S.M. Asif (supra). As the Lease Agreement dated 07.08.2011 and the extended Lease Agreement dated 07.08.2013, which are not in dispute and by the extended Lease Agreement, which was for one year, the rent was increased for the year 2013-2014 by 30%. | 1[ds]16. Thus, legislative intent is clear by using the word may and as it may think fit to the nature of admission. The said power is discretionary which should be only exercised when specific, clear and categorical admission of facts and documents are on record, otherwise the Court can refuse to invoke the power of Order XII Rule 6. The said provision has been brought with intent that if admission of facts raised by one side is admitted by other, and the Court is satisfied to the nature of admission, then the parties are not compelled for full-fledged trial and the judgment and order can be directed without taking any evidence. Therefore, to save the time and money of the Court and respective parties, the said provision has been brought in the statute. As per above discussion, it is clear that to pass a judgment on admission, the Court if thinks fit may pass an order at any stage of the suit. In case the judgment is pronounced by the Court a decree be drawn accordingly and parties to the case is not required to go for trial.18. On the issue of discretion of Court to pass judgment on admission, a three-Judge Bench of this Court in the case of S.M. Asif v. Virendar Kumar Bajaj – (2015) 9 SCC 287 made the legislative intent clear to use the word may which clearly stipulates that the power under Order XII Rule 6 of CPC is discretionary and cannot be claimed as a matter of right. In the said case, the suit for eviction was filed by the Respondent-Landlord against the Appellant-Tenant. The relationship of tenancy was admitted including the period of Lease Agreement. The Plaintiffs claim was resisted by the Defendant setting up a plea that the property in question was agreed to be sold by an agreement and the advance of Rs. 82,50,000/- was paid. The Defendant in course of taking the defense stoutly denied that Respondent/Plaintiff has continued to be the landlord after entering into Agreement to Sell. The suit for specific performance was also filed which of course was contested by the Plaintiff. In the said case, this Court was of the view that deciding such issues requires appreciation of evidence. Mere relationship of landlord and tenant cannot be said to be an unequivocal admission to decree the suit under Order XII Rule 6 of CPC. Resultantly, this Court by setting aside the judgment passed by the High Court remitted the matter back to the Trial Court subject to deposit of the arrears of the rent and the compensation for use of occupation of the suit premises. Such deposit was subject to final outcome of the eviction as well as suit for specific performance.19. In the context of the said legal position, reverting to the facts of the present case, it is apparent that the first Lease Agreement was executed on 07.08.2011 on a monthly rent of Rs.1,17,000/- of a suit premises. The said Lease Agreement was for a period of 02 years ending in July 2013. By the consent of the parties extended Lease Agreement dated 07.08.2013 was executed for a further period of 11 months for a monthly rent of Rs.1,50,000/- with approximate increase in rent amount by 30% for the next one year. Admittedly, the notice for eviction was issued terminating the lease due to non-payment of the rent after the expiry of the extended lease period which is due for payment by the Defendant. The suit for eviction was filed on 18.05.2018 for possession (based on Landlord-Tenant relationship), arrears of rent, mesne profit and pendente lite. The said suit was contested by the Defendant in which the ownership was not denied. The execution of first Lease Agreement dated 07.08.2011 and the extended Lease Agreement dated 07.08.2013 was also not denied. The monthly tenancy and payment of rent in terms of Lease Agreement is also not denied by the Defendant. The Defendant has taken a defense that the property belonging to him in Amloh was agreed to be sold to the Plaintiff to which effect ATS-II dated 25.05.2017 was executed. Further the Defendant has contended that, ATS-III dated 30.12.2017 was executed after some adjustments in consideration was made. Hence, the Defendant argued that on account of execution of the three Agreements to Sell with respect to the suit property for a sum of Rs. 3,60,00,000/-, the relationship of Landlord-Tenant ceased to exist and the Defendant acquired the status of the owner as he has already parted with the possession of the property under the Lease Agreement.22. Be that as it may, the arguments advanced by both the sides, in our view can be appreciated by the Trial Court by affording opportunity to them to lead evidence. As per the pleadings, there may be admission to the extent of execution of the Lease Agreement, rate of rent and monthly payment but simultaneously the defense taken by the Defendant is also based on ATS-I, II and III. In view of the contents of those agreements and terms specified therein, the defense as taken by the Appellant/Defendant is plausible or not is a matter of trial which may be appreciated by the Court after granting opportunity to lead evidence by the respective parties. There may be admission with respect to tenancy as per lease agreements but the defense as taken is also required to be looked into by the Court and there is need to decide justiciability of defense by the full-fledged trial. In our view, for the purpose of Order XII Rule 6, the said admission is not clear and categorical, so as to exercise a discretion by the Court without dealing with the defense as taken by Defendant. As we are conscious that any observation made by this Court may affect the merit of either side, therefore, we are not recording any finding either on the issue of tenancy or with respect to the defense as taken by the Defendant. We are only inclined to say whether the judgment and decree passed in exercise of the power under Order XII Rule 6 of CPC is based on clear and categorical admission. In our view, the facts of the case in hand and the judgment in S.M. Asif (supra) are altogether similar, therefore, the ratio of the said judgment rightly applies to the present case. Consequently, the judgment and decree passed by the Trial Court, as confirmed by the High Court, only on admission of fact without considering the defense in exercise of power under Order XII Rule 6 of CPC is hereby set-aside. The matter is remitted back to the Trial Court to decide the suit as expeditiously as possible affording due opportunity to the parties to record evidence that shall be appreciated by the Court on merit.23. In the present case, the tenant has not paid any amount of rent w.e.f. 07.07.2014. In a suit based on Landlord-Tenant relationship, the amount of rent and arrears thereof ought to be paid in terms of the order of the Court. The said view is fortified by the judgment of S.M. Asif (supra). As the Lease Agreement dated 07.08.2011 and the extended Lease Agreement dated 07.08.2013, which are not in dispute and by the extended Lease Agreement, which was for one year, the rent was increased for the year 2013-2014 by 30%. | 1 | 5,855 | 1,332 | ### 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:
limitations under the law. However, it is urged that the relationship of the Appellant has now been changed to purchaser on signing the ATS-I by landlord subsequent to lease agreement, therefore the relationship of landlord and tenant extinguishes. Reliance has also been placed on the judgment of Himani Alloys Limited (supra) and it has been urged by Appellant that in case the admission is not of the amount as alleged and not categoric and clear, the decree under Order XII Rule 6 cannot be directed. The case of Hari Steel (supra) has also been relied upon to contend that the relief under Order XII Rule 6 is discretionary and the Court should not deny the valuable right of the Defendant to contest the suit, meaning thereby, the discretion should be used only when there is a clear, categorical and unconditional admission and such right should not be exercised to deny valuable right of a Defendant to contest the claim based on defense taken. Further, relying upon the judgment of Shrimant Shanrao Suryavanshi (supra), it has been contended that when a possession is with the Appellant by virtue of a part performance of agreement to sell as prescribed under Section 53 of the Transfer of Property Act, 1882, he has right to defend or protect his possession. 21. On the other hand, Ms. Meenakshi Arora, learned senior counsel, placed reliance on the judgment of Nagindas Ramdas (supra), inter alia, contending that the admissions if true and clear are the best proof of the fact admitted, it is also stated the admissions in the pleadings or judicial admissions admissible under Section 58 of the Evidence Act, 1872, made by the parties or their agents at or before hearing of the case stands on higher footings than evidentiary admissions. It is binding and constitute the waiver of proof. Learned senior counsel further submits that the judgment of R. Kanthimathi (supra) is distinguishable with the present case. In the said case, after referring the terms of the agreement it reflected that the major amount of sale consideration was paid and only Rs.5,000/- was remaining to be paid. Also, by conveyance the possession of property was surrendered, therefore, Court said that the jural relationship between the persons were changed by way of subsequent agreement subject to the limitations under the law. While in the present case ATS-I was executed on 22.04.2017. In clause 2 of the said agreement, it was specifically mentioned however, no advance – earnest money has been paid to the first party. With respect to possession, it was mentioned that it shall be handed over on spot. Thus, out of the total sale consideration of Rs.3,60,00,000/- nothing was paid and the Appellant was in possession under the Lease Agreement as tenant. The document Annexure P-1 (Advance Receipt-cum Agreement to Sale & Purchase) produced alongwith the paperbook of appeal is a document which has not been produced before the lower Court. Thus, vide order dated 07.10.2021, it was made clear by this Court that the said document be deleted from the paperbook of this case. In view of the said distinction drawn it was urged that judgment of R. Kanthimathi (supra) is of no help to the Appellant. 22. Be that as it may, the arguments advanced by both the sides, in our view can be appreciated by the Trial Court by affording opportunity to them to lead evidence. As per the pleadings, there may be admission to the extent of execution of the Lease Agreement, rate of rent and monthly payment but simultaneously the defense taken by the Defendant is also based on ATS-I, II and III. In view of the contents of those agreements and terms specified therein, the defense as taken by the Appellant/Defendant is plausible or not is a matter of trial which may be appreciated by the Court after granting opportunity to lead evidence by the respective parties. There may be admission with respect to tenancy as per lease agreements but the defense as taken is also required to be looked into by the Court and there is need to decide justiciability of defense by the full-fledged trial. In our view, for the purpose of Order XII Rule 6, the said admission is not clear and categorical, so as to exercise a discretion by the Court without dealing with the defense as taken by Defendant. As we are conscious that any observation made by this Court may affect the merit of either side, therefore, we are not recording any finding either on the issue of tenancy or with respect to the defense as taken by the Defendant. We are only inclined to say whether the judgment and decree passed in exercise of the power under Order XII Rule 6 of CPC is based on clear and categorical admission. In our view, the facts of the case in hand and the judgment in S.M. Asif (supra) are altogether similar, therefore, the ratio of the said judgment rightly applies to the present case. Consequently, the judgment and decree passed by the Trial Court, as confirmed by the High Court, only on admission of fact without considering the defense in exercise of power under Order XII Rule 6 of CPC is hereby set-aside. The matter is remitted back to the Trial Court to decide the suit as expeditiously as possible affording due opportunity to the parties to record evidence that shall be appreciated by the Court on merit. 23. In the present case, the tenant has not paid any amount of rent w.e.f. 07.07.2014. In a suit based on Landlord-Tenant relationship, the amount of rent and arrears thereof ought to be paid in terms of the order of the Court. The said view is fortified by the judgment of S.M. Asif (supra). As the Lease Agreement dated 07.08.2011 and the extended Lease Agreement dated 07.08.2013, which are not in dispute and by the extended Lease Agreement, which was for one year, the rent was increased for the year 2013-2014 by 30%.
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clear to use the word may which clearly stipulates that the power under Order XII Rule 6 of CPC is discretionary and cannot be claimed as a matter of right. In the said case, the suit for eviction was filed by the Respondent-Landlord against the Appellant-Tenant. The relationship of tenancy was admitted including the period of Lease Agreement. The Plaintiffs claim was resisted by the Defendant setting up a plea that the property in question was agreed to be sold by an agreement and the advance of Rs. 82,50,000/- was paid. The Defendant in course of taking the defense stoutly denied that Respondent/Plaintiff has continued to be the landlord after entering into Agreement to Sell. The suit for specific performance was also filed which of course was contested by the Plaintiff. In the said case, this Court was of the view that deciding such issues requires appreciation of evidence. Mere relationship of landlord and tenant cannot be said to be an unequivocal admission to decree the suit under Order XII Rule 6 of CPC. Resultantly, this Court by setting aside the judgment passed by the High Court remitted the matter back to the Trial Court subject to deposit of the arrears of the rent and the compensation for use of occupation of the suit premises. Such deposit was subject to final outcome of the eviction as well as suit for specific performance.19. In the context of the said legal position, reverting to the facts of the present case, it is apparent that the first Lease Agreement was executed on 07.08.2011 on a monthly rent of Rs.1,17,000/- of a suit premises. The said Lease Agreement was for a period of 02 years ending in July 2013. By the consent of the parties extended Lease Agreement dated 07.08.2013 was executed for a further period of 11 months for a monthly rent of Rs.1,50,000/- with approximate increase in rent amount by 30% for the next one year. Admittedly, the notice for eviction was issued terminating the lease due to non-payment of the rent after the expiry of the extended lease period which is due for payment by the Defendant. The suit for eviction was filed on 18.05.2018 for possession (based on Landlord-Tenant relationship), arrears of rent, mesne profit and pendente lite. The said suit was contested by the Defendant in which the ownership was not denied. The execution of first Lease Agreement dated 07.08.2011 and the extended Lease Agreement dated 07.08.2013 was also not denied. The monthly tenancy and payment of rent in terms of Lease Agreement is also not denied by the Defendant. The Defendant has taken a defense that the property belonging to him in Amloh was agreed to be sold to the Plaintiff to which effect ATS-II dated 25.05.2017 was executed. Further the Defendant has contended that, ATS-III dated 30.12.2017 was executed after some adjustments in consideration was made. Hence, the Defendant argued that on account of execution of the three Agreements to Sell with respect to the suit property for a sum of Rs. 3,60,00,000/-, the relationship of Landlord-Tenant ceased to exist and the Defendant acquired the status of the owner as he has already parted with the possession of the property under the Lease Agreement.22. Be that as it may, the arguments advanced by both the sides, in our view can be appreciated by the Trial Court by affording opportunity to them to lead evidence. As per the pleadings, there may be admission to the extent of execution of the Lease Agreement, rate of rent and monthly payment but simultaneously the defense taken by the Defendant is also based on ATS-I, II and III. In view of the contents of those agreements and terms specified therein, the defense as taken by the Appellant/Defendant is plausible or not is a matter of trial which may be appreciated by the Court after granting opportunity to lead evidence by the respective parties. There may be admission with respect to tenancy as per lease agreements but the defense as taken is also required to be looked into by the Court and there is need to decide justiciability of defense by the full-fledged trial. In our view, for the purpose of Order XII Rule 6, the said admission is not clear and categorical, so as to exercise a discretion by the Court without dealing with the defense as taken by Defendant. As we are conscious that any observation made by this Court may affect the merit of either side, therefore, we are not recording any finding either on the issue of tenancy or with respect to the defense as taken by the Defendant. We are only inclined to say whether the judgment and decree passed in exercise of the power under Order XII Rule 6 of CPC is based on clear and categorical admission. In our view, the facts of the case in hand and the judgment in S.M. Asif (supra) are altogether similar, therefore, the ratio of the said judgment rightly applies to the present case. Consequently, the judgment and decree passed by the Trial Court, as confirmed by the High Court, only on admission of fact without considering the defense in exercise of power under Order XII Rule 6 of CPC is hereby set-aside. The matter is remitted back to the Trial Court to decide the suit as expeditiously as possible affording due opportunity to the parties to record evidence that shall be appreciated by the Court on merit.23. In the present case, the tenant has not paid any amount of rent w.e.f. 07.07.2014. In a suit based on Landlord-Tenant relationship, the amount of rent and arrears thereof ought to be paid in terms of the order of the Court. The said view is fortified by the judgment of S.M. Asif (supra). As the Lease Agreement dated 07.08.2011 and the extended Lease Agreement dated 07.08.2013, which are not in dispute and by the extended Lease Agreement, which was for one year, the rent was increased for the year 2013-2014 by 30%.
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Balabhagas Hulaschand Vs. State Of Orissa | sold is effected by a transfer of documents of title to them. Of course, in the first case, the movement of the goods must be from one State to another and in the second, the documents of title must be transferred during such movement".28. In State Trading Corporation of India Ltd. vs. State of Mysore, (1963) 3 S.C.R. 792 at 797-798 this Court observed as follows :-"Since the permits with which we are concerned provided that the supply had to be made from one or other factory situate outside Mysore, the contracts must be deemed to have contained a covenant that the goods would be supplied in Mysore from a place situate outside its borders. A sale under such a contract would clearly be an inter-State sale as defined in section 3(a) of the Central Sales Tax Act."29. Similarly in Tata Engineering & Locomotive Co. Ltd. vs. The Assistant Commissioner of Commercial Taxes & Anr. (1970) 3 S.C.R. 862 at 866, while describing the incidents of an inter-State sale, this Court observed as follows :-"A sale being transfer of property becomes taxable under Section 3(a) if the movement of goods from one State to another is under a covenant or incident of the contract of sale".30. The same view was taken in a later decision of this Court in M/s. Kelvinator of India Ltd. vs. The State of Haryana (1973) 3 S.C.C. 551 at 560 where Khanna, J., speaking for the Court observed as follows :-"It is also plain from the language of section 3(a) of the Act that the movement of goods from one State to another must be under the contract of sale. A movement of goods which takes place independently of a contract of sale would not fall within the ambit of the above clause. Perusal of section 3(a) further makes it manifest that there must be a contract of sale preceding the movement of the goods from one State to another, and the movement of goods should have been caused by and be the result of that contract of sale. If there was no contract of sale preceding the movement of goods, the movement can obviously be not ascribed to a contract of sale nor can it be said that the sale has occasioned the movement of goods from one State to the other".In that case, however, on the facts found by the High Court, this Court held that the sale was not an inter-State sale but an internal sale which took place in Delhi. In that case there was no movement of the goods from one State to another in pursuance of the contract of sale. In other words, the facts of this case clearly fell within Case No. 11 which has been described by us, above.31. To the same effect is the recent decision of this Court in The State of Tamil Nadu vs. The Cement Distributors (P) Ltd. and others, (1975) 4 S.C.C. 30 in which reliance was placed on the earlier decision of this Court in Tata Iron and Steel Co. Ltd. vs. S. R. Sarkar & others (supra).32. In Oil India Ltd. vs. The Superintendent of Taxes and others, (1975) 1 S.C.C. 733 at 736-737 while lucidly describing the incidents of an inter-State sale, Mathew, J., observed as follows :"This Court has held in a number of cases that if the movement of goods from one State to another is the result of a covenant or an incident of the contract of sale, then the sale is an inter-State sale ......."Even though Clause 7 of the supplemental agreement does not expressly provide for movement of the goods, it is clear that the parties envisaged the movement of crude oil in pursuance to the contract from the State of Assam to the State of Bihar. In other words, the movement of crude oil from the State of Assam to the State of Bihar was an incident of the contract of sale. No matter in which State the property in the goods passes, a sale which occasions movement of goods from one State to another is a sale in the course of inter-State trade. The inter-State movement must be the result of a covenant express or implied in the contract of sale or an incident of the contract. It is not necessary that the sale must precede the inter- State movement in order that the sale may be deemed to have occasioned such movement. It is also not necessary for a sale to be deemed to have taken place in the course of inter-State trade or commerce, that the covenant regarding inter-State movement must be specified in the contract itself. It would be enough if the movement was in pursuance of and incidental to the contract of sale."33. We might mention here that the case cited above appears to be on all fours with the facts of the present case. In that case also the goods were supplied from Assam to Bihar through the pipelines in Assam to Barauni in Bihar. This Court observed that no matter in which State the property in goods passes the sale undoubtedly occasioned movement of the goods which was sufficient to bring the case within the ambit of Section 3(a) of the Central Sales Tax Act.34. Thus the authorities discussed above by us fully support the principles and the ratio laid down by us. We have already pointed out that even though the sale took place at Calcutta, as rightly founded by the High Court, since the movement of goods preceded the sale in pursuance of the contract of sale which contained a clear stipulation that the goods were to move from Orissa to Calcutta in West Bengal, the movement of goods was occasioned by the sale itself which took place in Calcutta. In these circumstances, therefore, the High Court was legally justified in holding that in all these appeals the cases were clearly covered by the provisions of section 3(a) of the Central Sales Tax Act. | 0[ds]30. The same view was taken in a later decision of this Court in M/s. Kelvinator of India Ltd. vs. The State of Haryana (1973) 3 S.C.C. 551 at 560 where Khanna, J., speaking for the Court observed as followsis also plain from the language of section 3(a) of the Act that the movement of goods from one State to another must be under the contract of sale. A movement of goods which takes place independently of a contract of sale would not fall within the ambit of the above clause. Perusal of section 3(a) further makes it manifest that there must be a contract of sale preceding the movement of the goods from one State to another, and the movement of goods should have been caused by and be the result of that contract of sale. If there was no contract of sale preceding the movement of goods, the movement can obviously be not ascribed to a contract of sale nor can it be said that the sale has occasioned the movement of goods from one State to the other".In that case, however, on the facts found by the High Court, this Court held that the sale was not ansale but an internal sale which took place in Delhi. In that case there was no movement of the goods from one State to another in pursuance of the contract of sale. In other words, the facts of this case clearly fell within Case No. 11 which has been described by us, above.31. To the same effect is the recent decision of this Court in The State of Tamil Nadu vs. The Cement Distributors (P) Ltd. and others, (1975) 4 S.C.C. 30 in which reliance was placed on the earlier decision of this Court in Tata Iron and Steel Co. Ltd. vs. S. R. Sarkar & others (supra).32. In Oil India Ltd. vs. The Superintendent of Taxes and others, (1975) 1 S.C.C. 733 atwhile lucidly describing the incidents of ansale, Mathew, J., observed as follows :"This Court has held in a number of cases that if the movement of goods from one State to another is the result of a covenant or an incident of the contract of sale, then the sale is ansale ......."Even though Clause 7 of the supplemental agreement does not expressly provide for movement of the goods, it is clear that the parties envisaged the movement of crude oil in pursuance to the contract from the State of Assam to the State of Bihar. In other words, the movement of crude oil from the State of Assam to the State of Bihar was an incident of the contract of sale. No matter in which State the property in the goods passes, a sale which occasions movement of goods from one State to another is a sale in the course ofate movement must be the result of a covenant express or implied in the contract of sale or an incident of the contract. It is not necessary that the sale must precede the interState movement in order that the sale may be deemed to have occasioned such movement. It is also not necessary for a sale to be deemed to have taken place in the course oftrade or commerce, that the covenant regardingmovement must be specified in the contract itself. It would be enough if the movement was in pursuance of and incidental to the contract of sale."33. We might mention here that the case cited above appears to be on all fours with the facts of the present case. In that case also the goods were supplied from Assam to Bihar through the pipelines in Assam to Barauni in Bihar. This Court observed that no matter in which State the property in goods passes the sale undoubtedly occasioned movement of the goods which was sufficient to bring the case within the ambit of Section 3(a) of the Central Sales Tax Act.34. Thus the authorities discussed above by us fully support the principles and the ratio laid down by us. We have already pointed out that even though the sale took place at Calcutta, as rightly founded by the High Court, since the movement of goods preceded the sale in pursuance of the contract of sale which contained a clear stipulation that the goods were to move from Orissa to Calcutta in West Bengal, the movement of goods was occasioned by the sale itself which took place in Calcutta. In these circumstances, therefore, the High Court was legally justified in holding that in all these appeals the cases were clearly covered by the provisions of section 3(a) of the Central Sales Tax Act. | 0 | 4,716 | 863 | ### 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:
sold is effected by a transfer of documents of title to them. Of course, in the first case, the movement of the goods must be from one State to another and in the second, the documents of title must be transferred during such movement".28. In State Trading Corporation of India Ltd. vs. State of Mysore, (1963) 3 S.C.R. 792 at 797-798 this Court observed as follows :-"Since the permits with which we are concerned provided that the supply had to be made from one or other factory situate outside Mysore, the contracts must be deemed to have contained a covenant that the goods would be supplied in Mysore from a place situate outside its borders. A sale under such a contract would clearly be an inter-State sale as defined in section 3(a) of the Central Sales Tax Act."29. Similarly in Tata Engineering & Locomotive Co. Ltd. vs. The Assistant Commissioner of Commercial Taxes & Anr. (1970) 3 S.C.R. 862 at 866, while describing the incidents of an inter-State sale, this Court observed as follows :-"A sale being transfer of property becomes taxable under Section 3(a) if the movement of goods from one State to another is under a covenant or incident of the contract of sale".30. The same view was taken in a later decision of this Court in M/s. Kelvinator of India Ltd. vs. The State of Haryana (1973) 3 S.C.C. 551 at 560 where Khanna, J., speaking for the Court observed as follows :-"It is also plain from the language of section 3(a) of the Act that the movement of goods from one State to another must be under the contract of sale. A movement of goods which takes place independently of a contract of sale would not fall within the ambit of the above clause. Perusal of section 3(a) further makes it manifest that there must be a contract of sale preceding the movement of the goods from one State to another, and the movement of goods should have been caused by and be the result of that contract of sale. If there was no contract of sale preceding the movement of goods, the movement can obviously be not ascribed to a contract of sale nor can it be said that the sale has occasioned the movement of goods from one State to the other".In that case, however, on the facts found by the High Court, this Court held that the sale was not an inter-State sale but an internal sale which took place in Delhi. In that case there was no movement of the goods from one State to another in pursuance of the contract of sale. In other words, the facts of this case clearly fell within Case No. 11 which has been described by us, above.31. To the same effect is the recent decision of this Court in The State of Tamil Nadu vs. The Cement Distributors (P) Ltd. and others, (1975) 4 S.C.C. 30 in which reliance was placed on the earlier decision of this Court in Tata Iron and Steel Co. Ltd. vs. S. R. Sarkar & others (supra).32. In Oil India Ltd. vs. The Superintendent of Taxes and others, (1975) 1 S.C.C. 733 at 736-737 while lucidly describing the incidents of an inter-State sale, Mathew, J., observed as follows :"This Court has held in a number of cases that if the movement of goods from one State to another is the result of a covenant or an incident of the contract of sale, then the sale is an inter-State sale ......."Even though Clause 7 of the supplemental agreement does not expressly provide for movement of the goods, it is clear that the parties envisaged the movement of crude oil in pursuance to the contract from the State of Assam to the State of Bihar. In other words, the movement of crude oil from the State of Assam to the State of Bihar was an incident of the contract of sale. No matter in which State the property in the goods passes, a sale which occasions movement of goods from one State to another is a sale in the course of inter-State trade. The inter-State movement must be the result of a covenant express or implied in the contract of sale or an incident of the contract. It is not necessary that the sale must precede the inter- State movement in order that the sale may be deemed to have occasioned such movement. It is also not necessary for a sale to be deemed to have taken place in the course of inter-State trade or commerce, that the covenant regarding inter-State movement must be specified in the contract itself. It would be enough if the movement was in pursuance of and incidental to the contract of sale."33. We might mention here that the case cited above appears to be on all fours with the facts of the present case. In that case also the goods were supplied from Assam to Bihar through the pipelines in Assam to Barauni in Bihar. This Court observed that no matter in which State the property in goods passes the sale undoubtedly occasioned movement of the goods which was sufficient to bring the case within the ambit of Section 3(a) of the Central Sales Tax Act.34. Thus the authorities discussed above by us fully support the principles and the ratio laid down by us. We have already pointed out that even though the sale took place at Calcutta, as rightly founded by the High Court, since the movement of goods preceded the sale in pursuance of the contract of sale which contained a clear stipulation that the goods were to move from Orissa to Calcutta in West Bengal, the movement of goods was occasioned by the sale itself which took place in Calcutta. In these circumstances, therefore, the High Court was legally justified in holding that in all these appeals the cases were clearly covered by the provisions of section 3(a) of the Central Sales Tax Act.
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0
### Explanation:
30. The same view was taken in a later decision of this Court in M/s. Kelvinator of India Ltd. vs. The State of Haryana (1973) 3 S.C.C. 551 at 560 where Khanna, J., speaking for the Court observed as followsis also plain from the language of section 3(a) of the Act that the movement of goods from one State to another must be under the contract of sale. A movement of goods which takes place independently of a contract of sale would not fall within the ambit of the above clause. Perusal of section 3(a) further makes it manifest that there must be a contract of sale preceding the movement of the goods from one State to another, and the movement of goods should have been caused by and be the result of that contract of sale. If there was no contract of sale preceding the movement of goods, the movement can obviously be not ascribed to a contract of sale nor can it be said that the sale has occasioned the movement of goods from one State to the other".In that case, however, on the facts found by the High Court, this Court held that the sale was not ansale but an internal sale which took place in Delhi. In that case there was no movement of the goods from one State to another in pursuance of the contract of sale. In other words, the facts of this case clearly fell within Case No. 11 which has been described by us, above.31. To the same effect is the recent decision of this Court in The State of Tamil Nadu vs. The Cement Distributors (P) Ltd. and others, (1975) 4 S.C.C. 30 in which reliance was placed on the earlier decision of this Court in Tata Iron and Steel Co. Ltd. vs. S. R. Sarkar & others (supra).32. In Oil India Ltd. vs. The Superintendent of Taxes and others, (1975) 1 S.C.C. 733 atwhile lucidly describing the incidents of ansale, Mathew, J., observed as follows :"This Court has held in a number of cases that if the movement of goods from one State to another is the result of a covenant or an incident of the contract of sale, then the sale is ansale ......."Even though Clause 7 of the supplemental agreement does not expressly provide for movement of the goods, it is clear that the parties envisaged the movement of crude oil in pursuance to the contract from the State of Assam to the State of Bihar. In other words, the movement of crude oil from the State of Assam to the State of Bihar was an incident of the contract of sale. No matter in which State the property in the goods passes, a sale which occasions movement of goods from one State to another is a sale in the course ofate movement must be the result of a covenant express or implied in the contract of sale or an incident of the contract. It is not necessary that the sale must precede the interState movement in order that the sale may be deemed to have occasioned such movement. It is also not necessary for a sale to be deemed to have taken place in the course oftrade or commerce, that the covenant regardingmovement must be specified in the contract itself. It would be enough if the movement was in pursuance of and incidental to the contract of sale."33. We might mention here that the case cited above appears to be on all fours with the facts of the present case. In that case also the goods were supplied from Assam to Bihar through the pipelines in Assam to Barauni in Bihar. This Court observed that no matter in which State the property in goods passes the sale undoubtedly occasioned movement of the goods which was sufficient to bring the case within the ambit of Section 3(a) of the Central Sales Tax Act.34. Thus the authorities discussed above by us fully support the principles and the ratio laid down by us. We have already pointed out that even though the sale took place at Calcutta, as rightly founded by the High Court, since the movement of goods preceded the sale in pursuance of the contract of sale which contained a clear stipulation that the goods were to move from Orissa to Calcutta in West Bengal, the movement of goods was occasioned by the sale itself which took place in Calcutta. In these circumstances, therefore, the High Court was legally justified in holding that in all these appeals the cases were clearly covered by the provisions of section 3(a) of the Central Sales Tax Act.
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Consortium Of Titagarh Firema Adler S.P.A.- Titagarh Wagons Ltd, Through Authorised Signatory Titaga Vs. Nagpur Metro Rail Corporation Ltd | essential decisions and functions for the subsidiaries as well. According to the 1st respondent, the term "Government owned entity" would include a government owned entity and its subsidiaries and there can be no matter of doubt that the identity of the entities as belonging to the Government when established can be treated as a Government owned entity and the experience claimed by the parent of the subsidiaries can be taken into consideration. Learned senior counsel for the 1st respondent has drawn our attention to the "lifting of corporate veil" principle or doctrine of "piercing the veil" and in that context, reliance has been placed on Littlewoods Mail Order Stores, Ltd. v. McGregor, (1969) 3 All ER 855, DHN Food Distributors Ltd. and others v. London Borough of Tower Hamlets, (1976) 3 All ER 462 and Harold Holdsworth & Co. (Wakefield) Ld. v. Caddies, (1955) 1 WLR 352. Learned senior counsel has also placed reliance upon the principles stated in Renusagar Power Co. (supra) that have been reiterated in New Horizons Ltd. (supra). In the written submission filed on behalf of the 1st respondent, the relevant paragraphs from Renusagar Power Co. (supra) have been copiously quoted. It is also urged that in the current global economic regime the multinational corporations conduct their business through their subsidiaries and, therefore, there cannot be a hyper-technical approach that eligibility of the principal cannot be taken cognizance of when it speaks of the experience of the subsidiaries. It is also contended by Mr. Subramaniam that in the context of fraud or evasion of legal obligations, the doctrine of "piercing the veil" or "lifting of the corporate veil" can be applied but the said principle cannot be taken recourse to in a matter of the present nature. 33. With regard to the satisfaction of the 1st respondent, it has been highlighted before us that the said respondent had thoroughly examined the bid documents and satisfied itself about of the capability, experience and expertise of the respondent No. 2 and there has been a thorough analysis of the technical qualification of the respondent No. 2 by the independent General Consultant and the reports of the Appraisal and Tender Committee of the 1st respondent and also the no-objection has been received from KfW Development Bank, Germany which is funding the entire project. Narrating the experience of the respondent No. 1, it has been stated in the written submission filed on behalf of the 1st respondent: "36. That it is further clear from the record that besides being the lowest bidder, the experience of R 2 in supplying Metro Trains across the world exceeds the Petitioners experience by a huge margin. Where for clause 12, R 2 has shown a figure of 594 Metro Cars, Petitioner has shown only 72 Cars; and for clause 12.1 where R 2 has shown 432 Cars, Petitioner has again shown only 72 Cars. This vast experience of R 2 would be beneficial for the project and would further public interest.37. That R 1 without any malice, or malafide has treated R 2 along with its 100% subsidiaries as one entity. This understanding of the clause has been at the ends of both parties viz. R 1 and R 2, who were ad idem vis-a-vis the eligibility of the parent company to bid using the experience and executing the contract through its various 100% wholly owned subsidiaries.38. That the above understanding of R 1 of treating R 2 along with its 100% subsidiaries is supported by the understanding of the Delhi Metro Rail Corporation Ltd., which has on a similarly, if not same, worded bid-document granted the tender/agreement to R 2, which had even there bid as a parent company claiming experience of and execution through 100% wholly owned subsidiaries.39. That moreover, there is no bar, whatsoever, express or implied, in the tender document to treat the parent company along with its 100% wholly owned subsidiaries as one entity. Therefore, the scope of judicial review should be limited in adjudging the decision taken by R 1 in the best interest of the project, and thereby, the public.40. That arguendo, no project, whatsoever, has been caused to the project or to other bidders including the Petitioner by the above understanding of the tender conditions by R 1. It is humbly submitted that R 2 fulfilled all the technical requirements. The bid-document itself provided for bidding as a consortium, and did not require in such a case fulfilment of any material condition, which if not fulfilled would prejudice any parties or the project. Moreover, the scheme of the bid-document is such that it itself provides for a Parent Company Guarantee. According to this Parent Company Guarantee Form, a parent company would have to perform the works under the agreement in case the subsidiary failed. Therefore, the objections raised by the Petitioner are hyper-technical and have been raised only to stall the project once it was found to be unsuccessful." 34. As is noticeable, there is material on record that the respondent No. 2, a Government company, is the owner of the subsidiaries companies and subsidiaries companies have experience. The 1st respondent, as it appears, has applied its commercial wisdom in the understanding and interpretation which has been given the concurrence by the concerned Committee and the financing bank. We are disposed to think that the concept of "Government owned entity" cannot be conferred a narrow construction. It would include its subsidiaries subject to the satisfaction of the owner. There need not be a formation of a joint venture or a consortium. In the obtaining fact situation, the interpretation placed by the 1st respondent in the absence of any kind of perversity, bias or mala fide should not be interfered with in exercise of power of judicial review. Decision taken by the 1st respondent, as is perceptible, is keeping in view the commercial wisdom and the expertise and it is no way against the public interest. Therefore, we concur with the view expressed by the High Court. | 0[ds]23. As the uncurtained facts would reveal, on 17.02.2016 the appellant wrote to the 1st respondent seeking amendment to the "operation performance clause", i.e., Clause 12.1 of the Annexure III-A (PQ-Initial Filter). According to the said Clause, the bidder is required to have satisfactorily delivered at least 30 metro cars outside the country of manufacture or delivered in India. The amendment that was sought related to inclusion of the condition that delivery to any of the G8 countries should also be treated as acceptable. Such an amendment was for the appellants merged entity, which gave it the requisite experience, had manufactured and delivered metro cars only in G8 countries. The request of the appellant was accepted by the employer and supply to any of the G8 countries was included as permissible. That apart, the appellants request seeking extension of time to bid was also acceded to and accordingly time was extended and final date of submission was declared to be 08.07.2016. The time that was fixed at 4 p.m. was extended till 7 p.m. at the request made by the appellant. The purpose of narrating these aspects is only to highlight that the allegations of mala fide are farther from the truth.The core issue, as we perceive, pertains to acceptance of the technical bid of the respondent No. 2 by the 1st respondent and we are required to address the same solely on the touchstone of eligibility criteria regard being had to the essential conditions.The decision on other technical aspects, as we are advised at present, is best left to the experts. We do not intend to enter into the said domain though a feeble attempt has been made on the said count.Before we proceed to deal with the concept of single entity and the discretion used by the 1st respondent, we intend to deal with role of the Court when the eligibility criteria is required to be scanned and perceived by the Court. In Montecarlo Ltd. (supra), the Court referred to TATA Cellular (supra) wherein certain principles, namely, the modern trend pointing to judicial restraint on administrative action; the role of the court is only to review the manner in which the decision has been taken; the lack of expertise on the part of the court to correct the administrative decision; the conferment of freedom of contract on the Government which recognizes a fair play in the joints as a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere, were laid down. It was also stated in the said case that the administrative decision must not only be tested by the application of Wednesbury principle of reasonableness but also must be free from arbitrariness not affected by bias or actuated by mala fides. The two-Judge Bench took note of the fact that in Jagdish Mandal (supra) it has been held that, if the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out.Having stated this, we have to see, how the 1st respondent has perceived the offer of the respondent No. 2 in the backdrop of the tender conditions. It is not in dispute that the project in question has been funded by KfW Development Bank, Germany and as per Clause ITB 35.8, it is necessary at all stages of bid evaluation and contract award has to be subject to no-objection from KfW Development Bank. Emphasis has been laid on the approach of the High Court which has taken note of the fact that the respondent No. 2 had been awarded the tender by the Delhi Metro Rail Corporation. It has also been highlighted that the papers relating to the financial bid along with report were forwarded to KfW which gave its no-objection. Be it noted, the appellants have been quite critical about the acceptance of the offer and the 1st respondent has given a number of reasons to justify the same. As indicated earlier, we are only concerned with the eligibility criteria and not with the fiscal aspect.32. Respondent No. 2, as is evident, is a company owned by the Peoples Republic of China and, therefore, it comes within the ambit of Clause 4.1 of the bid document as a Government owned entity. We have already reproduced the said clause in earlier part of the judgment. As perceived by the 1st respondent, a single entity can bid for itself and it can consist of its constituents which are wholly owned subsidiaries and they may have experience in relation to the project. That apart, as is understood by the said respondent, where the singular or unified entity claims that as a consequence of merger, all the subsidiaries form a homogenous pool under its immediate control in respect of rights, liabilities, assets and obligations, the integrity of the singular entity as owning such rights, assets and liabilities cannot be ignored and must be given effect. While judging the eligibility criteria of the second respondent, the 1st respondent has scanned Article164 of the Articles of Association of the respondent No. 2 which are submitted along with the bid from which it is evincible that the Board of Directors of the respondent No. 2 has been entrusted with the authority and responsibility to discharge all necessary and essential decisions and functions for the subsidiaries as well. According to the 1st respondent, the term "Government owned entity" would include a government owned entity and its subsidiaries and there can be no matter of doubt that the identity of the entities as belonging to the Government when established can be treated as a Government owned entity and the experience claimed by the parent of the subsidiaries can be taken into consideration.With regard to the satisfaction of the 1st respondent, it has been highlighted before us that the said respondent had thoroughly examined the bid documents and satisfied itself about of the capability, experience and expertise of the respondent No. 2 and there has been a thorough analysis of the technical qualification of the respondent No. 2 by the independent General Consultant and the reports of the Appraisal and Tender Committee of the 1st respondent and also the no-objection has been received from KfW Development Bank, Germany which is funding the entire project. Narrating the experience of the respondent No. 1, it has been stated in the written submission filed on behalf of the 1stAs is noticeable, there is material on record that the respondent No. 2, a Government company, is the owner of the subsidiaries companies and subsidiaries companies have experience. The 1st respondent, as it appears, has applied its commercial wisdom in the understanding and interpretation which has been given the concurrence by the concerned Committee and the financing bank. We are disposed to think that the concept of "Government owned entity" cannot be conferred a narrow construction. It would include its subsidiaries subject to the satisfaction of the owner. There need not be a formation of a joint venture or a consortium. In the obtaining fact situation, the interpretation placed by the 1st respondent in the absence of any kind of perversity, bias or mala fide should not be interfered with in exercise of power of judicial review. Decision taken by the 1st respondent, as is perceptible, is keeping in view the commercial wisdom and the expertise and it is no way against the public interest. Therefore, we concur with the view expressed by the High Court. | 0 | 10,550 | 1,382 | ### 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:
essential decisions and functions for the subsidiaries as well. According to the 1st respondent, the term "Government owned entity" would include a government owned entity and its subsidiaries and there can be no matter of doubt that the identity of the entities as belonging to the Government when established can be treated as a Government owned entity and the experience claimed by the parent of the subsidiaries can be taken into consideration. Learned senior counsel for the 1st respondent has drawn our attention to the "lifting of corporate veil" principle or doctrine of "piercing the veil" and in that context, reliance has been placed on Littlewoods Mail Order Stores, Ltd. v. McGregor, (1969) 3 All ER 855, DHN Food Distributors Ltd. and others v. London Borough of Tower Hamlets, (1976) 3 All ER 462 and Harold Holdsworth & Co. (Wakefield) Ld. v. Caddies, (1955) 1 WLR 352. Learned senior counsel has also placed reliance upon the principles stated in Renusagar Power Co. (supra) that have been reiterated in New Horizons Ltd. (supra). In the written submission filed on behalf of the 1st respondent, the relevant paragraphs from Renusagar Power Co. (supra) have been copiously quoted. It is also urged that in the current global economic regime the multinational corporations conduct their business through their subsidiaries and, therefore, there cannot be a hyper-technical approach that eligibility of the principal cannot be taken cognizance of when it speaks of the experience of the subsidiaries. It is also contended by Mr. Subramaniam that in the context of fraud or evasion of legal obligations, the doctrine of "piercing the veil" or "lifting of the corporate veil" can be applied but the said principle cannot be taken recourse to in a matter of the present nature. 33. With regard to the satisfaction of the 1st respondent, it has been highlighted before us that the said respondent had thoroughly examined the bid documents and satisfied itself about of the capability, experience and expertise of the respondent No. 2 and there has been a thorough analysis of the technical qualification of the respondent No. 2 by the independent General Consultant and the reports of the Appraisal and Tender Committee of the 1st respondent and also the no-objection has been received from KfW Development Bank, Germany which is funding the entire project. Narrating the experience of the respondent No. 1, it has been stated in the written submission filed on behalf of the 1st respondent: "36. That it is further clear from the record that besides being the lowest bidder, the experience of R 2 in supplying Metro Trains across the world exceeds the Petitioners experience by a huge margin. Where for clause 12, R 2 has shown a figure of 594 Metro Cars, Petitioner has shown only 72 Cars; and for clause 12.1 where R 2 has shown 432 Cars, Petitioner has again shown only 72 Cars. This vast experience of R 2 would be beneficial for the project and would further public interest.37. That R 1 without any malice, or malafide has treated R 2 along with its 100% subsidiaries as one entity. This understanding of the clause has been at the ends of both parties viz. R 1 and R 2, who were ad idem vis-a-vis the eligibility of the parent company to bid using the experience and executing the contract through its various 100% wholly owned subsidiaries.38. That the above understanding of R 1 of treating R 2 along with its 100% subsidiaries is supported by the understanding of the Delhi Metro Rail Corporation Ltd., which has on a similarly, if not same, worded bid-document granted the tender/agreement to R 2, which had even there bid as a parent company claiming experience of and execution through 100% wholly owned subsidiaries.39. That moreover, there is no bar, whatsoever, express or implied, in the tender document to treat the parent company along with its 100% wholly owned subsidiaries as one entity. Therefore, the scope of judicial review should be limited in adjudging the decision taken by R 1 in the best interest of the project, and thereby, the public.40. That arguendo, no project, whatsoever, has been caused to the project or to other bidders including the Petitioner by the above understanding of the tender conditions by R 1. It is humbly submitted that R 2 fulfilled all the technical requirements. The bid-document itself provided for bidding as a consortium, and did not require in such a case fulfilment of any material condition, which if not fulfilled would prejudice any parties or the project. Moreover, the scheme of the bid-document is such that it itself provides for a Parent Company Guarantee. According to this Parent Company Guarantee Form, a parent company would have to perform the works under the agreement in case the subsidiary failed. Therefore, the objections raised by the Petitioner are hyper-technical and have been raised only to stall the project once it was found to be unsuccessful." 34. As is noticeable, there is material on record that the respondent No. 2, a Government company, is the owner of the subsidiaries companies and subsidiaries companies have experience. The 1st respondent, as it appears, has applied its commercial wisdom in the understanding and interpretation which has been given the concurrence by the concerned Committee and the financing bank. We are disposed to think that the concept of "Government owned entity" cannot be conferred a narrow construction. It would include its subsidiaries subject to the satisfaction of the owner. There need not be a formation of a joint venture or a consortium. In the obtaining fact situation, the interpretation placed by the 1st respondent in the absence of any kind of perversity, bias or mala fide should not be interfered with in exercise of power of judicial review. Decision taken by the 1st respondent, as is perceptible, is keeping in view the commercial wisdom and the expertise and it is no way against the public interest. Therefore, we concur with the view expressed by the High Court.
### Response:
0
### Explanation:
We do not intend to enter into the said domain though a feeble attempt has been made on the said count.Before we proceed to deal with the concept of single entity and the discretion used by the 1st respondent, we intend to deal with role of the Court when the eligibility criteria is required to be scanned and perceived by the Court. In Montecarlo Ltd. (supra), the Court referred to TATA Cellular (supra) wherein certain principles, namely, the modern trend pointing to judicial restraint on administrative action; the role of the court is only to review the manner in which the decision has been taken; the lack of expertise on the part of the court to correct the administrative decision; the conferment of freedom of contract on the Government which recognizes a fair play in the joints as a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere, were laid down. It was also stated in the said case that the administrative decision must not only be tested by the application of Wednesbury principle of reasonableness but also must be free from arbitrariness not affected by bias or actuated by mala fides. The two-Judge Bench took note of the fact that in Jagdish Mandal (supra) it has been held that, if the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out.Having stated this, we have to see, how the 1st respondent has perceived the offer of the respondent No. 2 in the backdrop of the tender conditions. It is not in dispute that the project in question has been funded by KfW Development Bank, Germany and as per Clause ITB 35.8, it is necessary at all stages of bid evaluation and contract award has to be subject to no-objection from KfW Development Bank. Emphasis has been laid on the approach of the High Court which has taken note of the fact that the respondent No. 2 had been awarded the tender by the Delhi Metro Rail Corporation. It has also been highlighted that the papers relating to the financial bid along with report were forwarded to KfW which gave its no-objection. Be it noted, the appellants have been quite critical about the acceptance of the offer and the 1st respondent has given a number of reasons to justify the same. As indicated earlier, we are only concerned with the eligibility criteria and not with the fiscal aspect.32. Respondent No. 2, as is evident, is a company owned by the Peoples Republic of China and, therefore, it comes within the ambit of Clause 4.1 of the bid document as a Government owned entity. We have already reproduced the said clause in earlier part of the judgment. As perceived by the 1st respondent, a single entity can bid for itself and it can consist of its constituents which are wholly owned subsidiaries and they may have experience in relation to the project. That apart, as is understood by the said respondent, where the singular or unified entity claims that as a consequence of merger, all the subsidiaries form a homogenous pool under its immediate control in respect of rights, liabilities, assets and obligations, the integrity of the singular entity as owning such rights, assets and liabilities cannot be ignored and must be given effect. While judging the eligibility criteria of the second respondent, the 1st respondent has scanned Article164 of the Articles of Association of the respondent No. 2 which are submitted along with the bid from which it is evincible that the Board of Directors of the respondent No. 2 has been entrusted with the authority and responsibility to discharge all necessary and essential decisions and functions for the subsidiaries as well. According to the 1st respondent, the term "Government owned entity" would include a government owned entity and its subsidiaries and there can be no matter of doubt that the identity of the entities as belonging to the Government when established can be treated as a Government owned entity and the experience claimed by the parent of the subsidiaries can be taken into consideration.With regard to the satisfaction of the 1st respondent, it has been highlighted before us that the said respondent had thoroughly examined the bid documents and satisfied itself about of the capability, experience and expertise of the respondent No. 2 and there has been a thorough analysis of the technical qualification of the respondent No. 2 by the independent General Consultant and the reports of the Appraisal and Tender Committee of the 1st respondent and also the no-objection has been received from KfW Development Bank, Germany which is funding the entire project. Narrating the experience of the respondent No. 1, it has been stated in the written submission filed on behalf of the 1stAs is noticeable, there is material on record that the respondent No. 2, a Government company, is the owner of the subsidiaries companies and subsidiaries companies have experience. The 1st respondent, as it appears, has applied its commercial wisdom in the understanding and interpretation which has been given the concurrence by the concerned Committee and the financing bank. We are disposed to think that the concept of "Government owned entity" cannot be conferred a narrow construction. It would include its subsidiaries subject to the satisfaction of the owner. There need not be a formation of a joint venture or a consortium. In the obtaining fact situation, the interpretation placed by the 1st respondent in the absence of any kind of perversity, bias or mala fide should not be interfered with in exercise of power of judicial review. Decision taken by the 1st respondent, as is perceptible, is keeping in view the commercial wisdom and the expertise and it is no way against the public interest. Therefore, we concur with the view expressed by the High Court.
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Coal Mines Provident Fund Commissionerdhanbad & Other Vs. J. Lala & Sons | in section 10F of the Act are as follows:-"Where an employer makes default in the payment of any contribution or bonus or any charge s payable- by him under any scheme framed under this act, or where any person who is required to transfer provident fund accumulations in accordance with the provisions of section 3D makes default in the transfer of such accumulations, the Central Government may recover from such employer or person, as the case may be, such damages, not exceeding twenty-five per cent of the amount of arrears, as it may think fit to impose."3. The Central Government under sub-section (1) of section 10 C of the Act is authorised to delegate any power exercisable by it under the Act, or any Scheme framed there under, to the Coal Mines Provident Fund Commissioner or any other officer.The Central Government in exercise of the power conferred under section 10C(1) of the Act by notification dated 1st October, 1966 directed that powers exercisable by it under sections 10A and A 10F of the Act and specified in column (1) of t he Table attached to the notification shall, subject to the conditions specified in the corresponding entry in column (2) of the Table attached, be exercisable by the Coal Mines Provident Fund Commissioner appointed under section 3C(l) of the Act. There is a Schedule attached to the notification where sliding scale of damages has been fixed by the Central Government under section 10F of the Act. The Schedule attached to the notification is as follows:-"Sliding rate of recovery o f damages under section 10F of the Coal Mines Provident Fund and Bonus Scheme Act, 1949." S. No. of Period of defaultault , duting one over over over over over the year. month one two three four five or less month months months months month s up to up to up to up to two three fourfive months months months months 2 3 4 5 6 7 1st default 2% of S% of 18% of 15% of 20% of 25% of arrears alTears alTears arrears arTears arrears 2nddefault S% " IO% " 15% " 20% " 25% " 2S% " 3rd defau lt IO% " IS% " 20% " 2S% " 2S% " 2S% " 4thdefault IS% " 20% " 2S% " 2S% " 2S% " 2S% 5th default 20% " 2S% " 2S% " 2S% " 2S% " 2S% " 6th or subsequent 2S% " 2S% " 2S% " 2S% " 2S% " 2S% " default li Under section 78 of the Act the Coal Mines Provident Fund Commissioner or any other officer authorised in that behalf by the Central Government may, by order, determine the amount due from any employer under any provision of this Act or any scheme framed there under and for this purpose may conduct such enquiry as he may deem necessary. Section 78(3) also contemplates giving of reason- able opportunity to represent the case. The High Court held that the provisions of section 78 are attracted in the case of an order relating to determination of damages for delay in payment of contribution under the Act.The Solicitor General contended that section 78 of the Act does not apply for two reasons. First, section 78 of the Act would be applicable only where liability is to b e determined. Neither liability to pay nor default in payment is disputed in the present case. Second, under section 10F of the Act the amount of damages is quantified and a personal hearing is not necessary because the employer has said everything in his representation and an order for payment of damages is not one of punishment.4. The provisions contained in section 78 of the Act indicate first that the Coal Mines Provident Fund Commissioner may determine the amount due from the employer, and, second, for this purpose he may conduct such enquiry as he may deem necessary. Therefore, an enquiry is contemplated. Section 78(3) speaks of reasonable opportunity being given to an employer to represent his case . The provisions in section 10F of the Act also indicate that determination of damages is not a mechanical process. The words of importance in section 10F of the Act are "such damages not exceeding 25 per cent of the amount of arrears as it may think fit to impose". Here the two important features are these. First, the words of importance are "damages not exceeding 25 per cent". These words show that the determination of damages is not an inflexible application of a rigid formula. Second, the words "as it may think fit to impose" in section 10F of the Act show that the authorities are required to apply their mind to the facts and circumstances of the case.5. This Court in The India Sugars and Refineries Ltd. v . Amravathi Service Co-op. Society Ltd. &Anr. etc. ([1976] 2 S.C.R. 740) said that "situations in which a duty will arise to act judicially according to the natural justice cannot be exhaustively enumerated. A duty to act judicially will arise in the exercise of a power to deprive a person of legitimate interest or expectation that addition price would be paid. The facts which point to an exercise of powers judicially are the nature of the interest to be affected, the circumstances in which the power falls to be exercised and the nature of the sanctions, if any involved". When a body or authority has to determine a matter involving rights judicially the principle of natural justice is implied if the decision of that body or authority affects individual rights or interests. Again, in such cases having regard to the particular situation it would be unfair for the body or authority not to have allowed a reasonable opportunity to be heard. (See State of Punjab v. K. R. Erry & Sobhag Rai Mehta. ([1973] 2 S.C.R. 405.)The High Court was correct in holding that an opportunity should have been given to the employer to be heard before the damages were determined. | 0[ds]The provisions contained in section 78 of the Act indicate first that the Coal Mines Provident Fund Commissioner may determine the amount due from the employer, and, second, for this purpose he may conduct such enquiry as he may deem necessary. Therefore, an enquiry is contemplated. Section 78(3) speaks of reasonable opportunity being given to an employer to represent his case . The provisions in section 10F of the Act also indicate that determination of damages is not a mechanical process. The words of importance in section 10F of the Act are "such damages not exceeding 25 per cent of the amount of arrears as it may think fit to impose". Here the two important features are these. First, the words of importance are "damages not exceeding 25 per cent". These words show that the determination of damages is not an inflexible application of a rigid formula. Second, the words "as it may think fit to impose" in section 10F of the Act show that the authorities are required to apply their mind to the facts and circumstances of theCourt in The India Sugars and Refineries Ltd. v . Amravathi Service Co-op. Society Ltd. &Anr. etc. ([1976] 2 S.C.R. 740) said that "situations in which a duty will arise to act judicially according to the natural justice cannot be exhaustively enumerated. A duty to act judicially will arise in the exercise of a power to deprive a person of legitimate interest or expectation that addition price would be paid. The facts which point to an exercise of powers judicially are the nature of the interest to be affected, the circumstances in which the power falls to be exercised and the nature of the sanctions, if any involved". When a body or authority has to determine a matter involving rights judicially the principle of natural justice is implied if the decision of that body or authority affects individual rights or interests. Again, in such cases having regard to the particular situation it would be unfair for the body or authority not to have allowed a reasonable opportunity to be heard. (See State of Punjab v. K. R. Erry & Sobhag Rai Mehta. ([1973] 2 S.C.R. 405.)The High Court was correct in holding that an opportunity should have been given to the employer to be heard before the damages were | 0 | 1,453 | 443 | ### 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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in section 10F of the Act are as follows:-"Where an employer makes default in the payment of any contribution or bonus or any charge s payable- by him under any scheme framed under this act, or where any person who is required to transfer provident fund accumulations in accordance with the provisions of section 3D makes default in the transfer of such accumulations, the Central Government may recover from such employer or person, as the case may be, such damages, not exceeding twenty-five per cent of the amount of arrears, as it may think fit to impose."3. The Central Government under sub-section (1) of section 10 C of the Act is authorised to delegate any power exercisable by it under the Act, or any Scheme framed there under, to the Coal Mines Provident Fund Commissioner or any other officer.The Central Government in exercise of the power conferred under section 10C(1) of the Act by notification dated 1st October, 1966 directed that powers exercisable by it under sections 10A and A 10F of the Act and specified in column (1) of t he Table attached to the notification shall, subject to the conditions specified in the corresponding entry in column (2) of the Table attached, be exercisable by the Coal Mines Provident Fund Commissioner appointed under section 3C(l) of the Act. There is a Schedule attached to the notification where sliding scale of damages has been fixed by the Central Government under section 10F of the Act. The Schedule attached to the notification is as follows:-"Sliding rate of recovery o f damages under section 10F of the Coal Mines Provident Fund and Bonus Scheme Act, 1949." S. No. of Period of defaultault , duting one over over over over over the year. month one two three four five or less month months months months month s up to up to up to up to two three fourfive months months months months 2 3 4 5 6 7 1st default 2% of S% of 18% of 15% of 20% of 25% of arrears alTears alTears arrears arTears arrears 2nddefault S% " IO% " 15% " 20% " 25% " 2S% " 3rd defau lt IO% " IS% " 20% " 2S% " 2S% " 2S% " 4thdefault IS% " 20% " 2S% " 2S% " 2S% " 2S% 5th default 20% " 2S% " 2S% " 2S% " 2S% " 2S% " 6th or subsequent 2S% " 2S% " 2S% " 2S% " 2S% " 2S% " default li Under section 78 of the Act the Coal Mines Provident Fund Commissioner or any other officer authorised in that behalf by the Central Government may, by order, determine the amount due from any employer under any provision of this Act or any scheme framed there under and for this purpose may conduct such enquiry as he may deem necessary. Section 78(3) also contemplates giving of reason- able opportunity to represent the case. The High Court held that the provisions of section 78 are attracted in the case of an order relating to determination of damages for delay in payment of contribution under the Act.The Solicitor General contended that section 78 of the Act does not apply for two reasons. First, section 78 of the Act would be applicable only where liability is to b e determined. Neither liability to pay nor default in payment is disputed in the present case. Second, under section 10F of the Act the amount of damages is quantified and a personal hearing is not necessary because the employer has said everything in his representation and an order for payment of damages is not one of punishment.4. The provisions contained in section 78 of the Act indicate first that the Coal Mines Provident Fund Commissioner may determine the amount due from the employer, and, second, for this purpose he may conduct such enquiry as he may deem necessary. Therefore, an enquiry is contemplated. Section 78(3) speaks of reasonable opportunity being given to an employer to represent his case . The provisions in section 10F of the Act also indicate that determination of damages is not a mechanical process. The words of importance in section 10F of the Act are "such damages not exceeding 25 per cent of the amount of arrears as it may think fit to impose". Here the two important features are these. First, the words of importance are "damages not exceeding 25 per cent". These words show that the determination of damages is not an inflexible application of a rigid formula. Second, the words "as it may think fit to impose" in section 10F of the Act show that the authorities are required to apply their mind to the facts and circumstances of the case.5. This Court in The India Sugars and Refineries Ltd. v . Amravathi Service Co-op. Society Ltd. &Anr. etc. ([1976] 2 S.C.R. 740) said that "situations in which a duty will arise to act judicially according to the natural justice cannot be exhaustively enumerated. A duty to act judicially will arise in the exercise of a power to deprive a person of legitimate interest or expectation that addition price would be paid. The facts which point to an exercise of powers judicially are the nature of the interest to be affected, the circumstances in which the power falls to be exercised and the nature of the sanctions, if any involved". When a body or authority has to determine a matter involving rights judicially the principle of natural justice is implied if the decision of that body or authority affects individual rights or interests. Again, in such cases having regard to the particular situation it would be unfair for the body or authority not to have allowed a reasonable opportunity to be heard. (See State of Punjab v. K. R. Erry & Sobhag Rai Mehta. ([1973] 2 S.C.R. 405.)The High Court was correct in holding that an opportunity should have been given to the employer to be heard before the damages were determined.
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The provisions contained in section 78 of the Act indicate first that the Coal Mines Provident Fund Commissioner may determine the amount due from the employer, and, second, for this purpose he may conduct such enquiry as he may deem necessary. Therefore, an enquiry is contemplated. Section 78(3) speaks of reasonable opportunity being given to an employer to represent his case . The provisions in section 10F of the Act also indicate that determination of damages is not a mechanical process. The words of importance in section 10F of the Act are "such damages not exceeding 25 per cent of the amount of arrears as it may think fit to impose". Here the two important features are these. First, the words of importance are "damages not exceeding 25 per cent". These words show that the determination of damages is not an inflexible application of a rigid formula. Second, the words "as it may think fit to impose" in section 10F of the Act show that the authorities are required to apply their mind to the facts and circumstances of theCourt in The India Sugars and Refineries Ltd. v . Amravathi Service Co-op. Society Ltd. &Anr. etc. ([1976] 2 S.C.R. 740) said that "situations in which a duty will arise to act judicially according to the natural justice cannot be exhaustively enumerated. A duty to act judicially will arise in the exercise of a power to deprive a person of legitimate interest or expectation that addition price would be paid. The facts which point to an exercise of powers judicially are the nature of the interest to be affected, the circumstances in which the power falls to be exercised and the nature of the sanctions, if any involved". When a body or authority has to determine a matter involving rights judicially the principle of natural justice is implied if the decision of that body or authority affects individual rights or interests. Again, in such cases having regard to the particular situation it would be unfair for the body or authority not to have allowed a reasonable opportunity to be heard. (See State of Punjab v. K. R. Erry & Sobhag Rai Mehta. ([1973] 2 S.C.R. 405.)The High Court was correct in holding that an opportunity should have been given to the employer to be heard before the damages were
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Jindas Oil Mill & Another Vs. Godhra Electricity Company Limited & Others | even before the Supply Act was enacted. Therefore quite clearly the licence in question is governed by the present Section 57. Hence we have to read into that licence the provisions contained in Schedule VI.If any of the earlier provisions in the licence either as they stood when the licence was originally granted or as they stood modified as per the provisions of the Supply Act prior to its amendment in 1956 are inconsistent with the provisions of Schedule VI or Section 57 (A) as they are now they must be held to be void and of no effect. In other words we must read into the licence the provisions of Schedule VI and strike out therefrom such terms as are inconsistent with those provisions and thereafter give effect to the same. For determining the rights and duties of the licensee as at present we have only to look into the terms of the licence as modified by Schedule VI. We cannot go behind them. That much is clear from the language of the Supply Act. The intention of the legislature is clear and unambiguous. Therefore there is no need to call into aid any rule of statutory construction or any legal presumption. Further no reason was advanced before us, nor can we conceive of any why those who obtained licences prior to the amendment of Supply Act in 1958 should be in a more disadvantageous position than those who got their licenses thereafter. Correspondingly we fail to see why those who are served by licensees who obtained their licences prior to the amendment of the Supply Act in 1958 should be placed in a better position than those served by licensees who obtained their licenses thereafter. After all, every law has some reason behind it. Section 57 (A) (2) (c) was intended to meet the changing economic circumstances. The purpose behind the new provisions appears to be to permit the licensees to so adjust their charges as to get reasonable profits. But at the same time a machinery has been provided to see whether any excess charges have been levied and if levied, get the same refunded to the consumers.10. The law declared by the Amending Act does not affect any right or privilege, accrued under the repealed provision. It merely prescribes as to what could or should be done in future. Therefore there is no basis for saying that it affects vested rights. For finding out the power of the licensee to alter the charges one has to look to the terms of the licence in the light of the law as it stands, the past history of that law being wholly irrelevant. If the terms of the licence, including the deemed terms permit him to unilaterally alter the charges then he has that right. If we merely look at those terms, as we think we ought to, then there is no dispute that the respondent was within its rights in enhancing the charges as admittedly it had followed the procedure prescribed by law.We also do not agree with Mr. Chagla in his contention that there is no inconsistency between the present scheme relating to the enhancement of charges vis-a-vis the scheme provided under the Supply Act prior to its amendment in 1956. The two schemes are substantially different. Under the former scheme once the Government fixes the charges the licensee cannot alter it but at present at the end of the period fixed in the Government order the licensee has a unilateral right to enhance the charges in accordance with the conditions prescribed in VI th Schedule. Therefore in view of Section 57 the provisions contained in that schedule have an overriding effect.11. In Amalgamated Electricity Co. Ld. v. N. S. Bhathena, 1964-7 SCR 503 = (Am 1964 SC 1598) this Court was called upon to consider the scope of Section 57 (A) and the Schedule VI as it stands now. Therein the controversy was whether the appellant therein was entitled to levy charges more than the maximum charges prescribed in its licence issued in 1932. It may be noted that in that case the notice of enhancement of the charges was given on September 25, 1958. This Court held that the maximum stipulated in the licence no longer governed the right of the licensee to enhance the charges; his rights were exclusively governed by the provisions contained in paragraph I of Schedule VI of the Supply Act. It is true that in that case this Court was considering the right of the licensee under the Supply Act vis-a-vis his right under the licence granted under the Indian Electricity Act, 1910 but that difference is not material. What this Court in fact considered was the right of the licensee under the existing law to enhance the charges. Dealing with the scope of paragraph I of Schedule VI, Ayyangar, J., who spoke for the majority observed thus:"Para I of Schedule VI both as it originally stood and as amended, as seen already, empowered the licensee "to adjust his rates, so that his clear profit in any year shall not, as far as possible; exceed the amount of reasonable return". We shall reserve for later consideration the meaning of the expression "so adjust his rates". But one thing is clear and that is that the adjustment is unilateral and that the licensee has a statutory right to adjust his rates provided he conforms to the requirements of that paragraph viz., the rate charged does not yield a profit exceeding the amount of reasonable return. The conclusion is therefore irresistible that the maxima prescribed by the State Government which bound the licensee under the Electricity Act of 1910 no longer limited the amount which a licensee could charge after the Supply Act, 1948 came into force Since the "clear profit and "reasonable return" which determined the rate to be charged was to be computed on the basis of very different criteria and factors than what obtained under the Electricity Act" | 0[ds]From an examination of these provisions it would be seen that under the Supply Act prior to its amendment in 1956, the charges fixed by the Government under Section 57 (2) (c) remained in force unless reduced by the licensee in the meantime till the same were altered by a subsequent order made by the Government after getting a fresh recommendation from the rating committee but under the law as it now stands the rate fixed by the Government under Sec. 57 (A) (1) (d) would be in operation only for such period not exceeding three years as the State Government may specify in the order. Thereafter it can be enhanced by the licensee in accordance with the provisions contained in Scheduleis true that when an existing Statute or Regulation is repealed and the same is replaced by fresh Statute or Regulation unless the new Statute or Regulation specifically or by necessary implication affects rights created under the old law those rights must be held to continue in force even after the new Statute or Regulation comes into force. But in the cases before us there is no question of affecting any vested right. There is no dispute that the charges fixed can be altered. The controversy relates to the procedure to be adopted in altering them. That controversy does not touch any vested right. The procedure in question must necessorily be regulated by the law in force at the time of the alteration of the charges.The law declared by the Amending Act does not affect any right or privilege, accrued under the repealed provision. It merely prescribes as to what could or should be done in future. Therefore there is no basis for saying that it affects vested rights. For finding out the power of the licensee to alter the charges one has to look to the terms of the licence in the light of the law as it stands, the past history of that law being wholly irrelevant. If the terms of the licence, including the deemed terms permit him to unilaterally alter the charges then he has that right. If we merely look at those terms, as we think we ought to, then there is no dispute that the respondent was within its rights in enhancing the charges as admittedly it had followed the procedure prescribed by law.We also do not agree with Mr. Chagla in his contention that there is no inconsistency between the present scheme relating to the enhancement of charges vis-a-vis the scheme provided under the Supply Act prior to its amendment in 1956. The two schemes are substantially different. Under the former scheme once the Government fixes the charges the licensee cannot alter it but at present at the end of the period fixed in the Government order the licensee has a unilateral right to enhance the charges in accordance with the conditions prescribed in VI th Schedule. Therefore in view of Section 57 the provisions contained in that schedule have an overriding effect. | 0 | 5,447 | 538 | ### 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.
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even before the Supply Act was enacted. Therefore quite clearly the licence in question is governed by the present Section 57. Hence we have to read into that licence the provisions contained in Schedule VI.If any of the earlier provisions in the licence either as they stood when the licence was originally granted or as they stood modified as per the provisions of the Supply Act prior to its amendment in 1956 are inconsistent with the provisions of Schedule VI or Section 57 (A) as they are now they must be held to be void and of no effect. In other words we must read into the licence the provisions of Schedule VI and strike out therefrom such terms as are inconsistent with those provisions and thereafter give effect to the same. For determining the rights and duties of the licensee as at present we have only to look into the terms of the licence as modified by Schedule VI. We cannot go behind them. That much is clear from the language of the Supply Act. The intention of the legislature is clear and unambiguous. Therefore there is no need to call into aid any rule of statutory construction or any legal presumption. Further no reason was advanced before us, nor can we conceive of any why those who obtained licences prior to the amendment of Supply Act in 1958 should be in a more disadvantageous position than those who got their licenses thereafter. Correspondingly we fail to see why those who are served by licensees who obtained their licences prior to the amendment of the Supply Act in 1958 should be placed in a better position than those served by licensees who obtained their licenses thereafter. After all, every law has some reason behind it. Section 57 (A) (2) (c) was intended to meet the changing economic circumstances. The purpose behind the new provisions appears to be to permit the licensees to so adjust their charges as to get reasonable profits. But at the same time a machinery has been provided to see whether any excess charges have been levied and if levied, get the same refunded to the consumers.10. The law declared by the Amending Act does not affect any right or privilege, accrued under the repealed provision. It merely prescribes as to what could or should be done in future. Therefore there is no basis for saying that it affects vested rights. For finding out the power of the licensee to alter the charges one has to look to the terms of the licence in the light of the law as it stands, the past history of that law being wholly irrelevant. If the terms of the licence, including the deemed terms permit him to unilaterally alter the charges then he has that right. If we merely look at those terms, as we think we ought to, then there is no dispute that the respondent was within its rights in enhancing the charges as admittedly it had followed the procedure prescribed by law.We also do not agree with Mr. Chagla in his contention that there is no inconsistency between the present scheme relating to the enhancement of charges vis-a-vis the scheme provided under the Supply Act prior to its amendment in 1956. The two schemes are substantially different. Under the former scheme once the Government fixes the charges the licensee cannot alter it but at present at the end of the period fixed in the Government order the licensee has a unilateral right to enhance the charges in accordance with the conditions prescribed in VI th Schedule. Therefore in view of Section 57 the provisions contained in that schedule have an overriding effect.11. In Amalgamated Electricity Co. Ld. v. N. S. Bhathena, 1964-7 SCR 503 = (Am 1964 SC 1598) this Court was called upon to consider the scope of Section 57 (A) and the Schedule VI as it stands now. Therein the controversy was whether the appellant therein was entitled to levy charges more than the maximum charges prescribed in its licence issued in 1932. It may be noted that in that case the notice of enhancement of the charges was given on September 25, 1958. This Court held that the maximum stipulated in the licence no longer governed the right of the licensee to enhance the charges; his rights were exclusively governed by the provisions contained in paragraph I of Schedule VI of the Supply Act. It is true that in that case this Court was considering the right of the licensee under the Supply Act vis-a-vis his right under the licence granted under the Indian Electricity Act, 1910 but that difference is not material. What this Court in fact considered was the right of the licensee under the existing law to enhance the charges. Dealing with the scope of paragraph I of Schedule VI, Ayyangar, J., who spoke for the majority observed thus:"Para I of Schedule VI both as it originally stood and as amended, as seen already, empowered the licensee "to adjust his rates, so that his clear profit in any year shall not, as far as possible; exceed the amount of reasonable return". We shall reserve for later consideration the meaning of the expression "so adjust his rates". But one thing is clear and that is that the adjustment is unilateral and that the licensee has a statutory right to adjust his rates provided he conforms to the requirements of that paragraph viz., the rate charged does not yield a profit exceeding the amount of reasonable return. The conclusion is therefore irresistible that the maxima prescribed by the State Government which bound the licensee under the Electricity Act of 1910 no longer limited the amount which a licensee could charge after the Supply Act, 1948 came into force Since the "clear profit and "reasonable return" which determined the rate to be charged was to be computed on the basis of very different criteria and factors than what obtained under the Electricity Act"
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### Explanation:
From an examination of these provisions it would be seen that under the Supply Act prior to its amendment in 1956, the charges fixed by the Government under Section 57 (2) (c) remained in force unless reduced by the licensee in the meantime till the same were altered by a subsequent order made by the Government after getting a fresh recommendation from the rating committee but under the law as it now stands the rate fixed by the Government under Sec. 57 (A) (1) (d) would be in operation only for such period not exceeding three years as the State Government may specify in the order. Thereafter it can be enhanced by the licensee in accordance with the provisions contained in Scheduleis true that when an existing Statute or Regulation is repealed and the same is replaced by fresh Statute or Regulation unless the new Statute or Regulation specifically or by necessary implication affects rights created under the old law those rights must be held to continue in force even after the new Statute or Regulation comes into force. But in the cases before us there is no question of affecting any vested right. There is no dispute that the charges fixed can be altered. The controversy relates to the procedure to be adopted in altering them. That controversy does not touch any vested right. The procedure in question must necessorily be regulated by the law in force at the time of the alteration of the charges.The law declared by the Amending Act does not affect any right or privilege, accrued under the repealed provision. It merely prescribes as to what could or should be done in future. Therefore there is no basis for saying that it affects vested rights. For finding out the power of the licensee to alter the charges one has to look to the terms of the licence in the light of the law as it stands, the past history of that law being wholly irrelevant. If the terms of the licence, including the deemed terms permit him to unilaterally alter the charges then he has that right. If we merely look at those terms, as we think we ought to, then there is no dispute that the respondent was within its rights in enhancing the charges as admittedly it had followed the procedure prescribed by law.We also do not agree with Mr. Chagla in his contention that there is no inconsistency between the present scheme relating to the enhancement of charges vis-a-vis the scheme provided under the Supply Act prior to its amendment in 1956. The two schemes are substantially different. Under the former scheme once the Government fixes the charges the licensee cannot alter it but at present at the end of the period fixed in the Government order the licensee has a unilateral right to enhance the charges in accordance with the conditions prescribed in VI th Schedule. Therefore in view of Section 57 the provisions contained in that schedule have an overriding effect.
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Jitendra Nath Singh Vs. Official Liquidator | Tribunal). This limited priority is declared in Section 529-A(1) but it is restricted only to the extent specified in clause (b) of Section 529-A(1). The said provision refers to clause (c) of the proviso to Section 529(1) and it is necessary to understand the scope of the said provision.65. Under clause (c) of the proviso to Section 529(1), the priority of the secured creditor who stands outside the winding-up is confined to the “workmens portion” as defined in Section 529(3)(c). “Workmens portion” means the amount which bears to the value of the security, the same proportion which the amount of the workmens dues bears to the aggregate of (a) workmens dues, and (b) the amounts of the debts due to all the creditors. This is explained in the illustration under the said provision. If the workmens dues in all are, say, Rs.1 lakh and the debt due to all secured creditors is Rs.3 lakhs, the total amount due to all of them comes to Rs.4 lakhs. Therefore, the workmens share comes to 25% (Rs 1 lakh out of Rs 4 lakhs). Now if the value of the security of a secured creditor (like Canara Bank) is Rs.1 lakh, the “workmens portion” will be Rs.25,000 which is the pro-rata amount to be shared by the said secured creditor. By virtue of Section 529-A(1)(b) his priority over all others out of other monies available in the Tribunal is restricted to Rs.25,000 only.” 14. In Andhra Bank v. Official Liquidator & Anr. (supra), a three-Judge Bench speaking through S.B. Sinha, J. has also discussed in paragraphs 22 and 23 the rights of secured creditors, relevant extracts from which are quoted hereinbelow: “22. In terms of the aforementioned provisions, the secured creditors have two options (i) they may desire to go before the Company Judge; or (ii) they may stand outside the winding-up proceedings. The secured creditors of the second category, however, would come within the purview of Section 529-A(1)(b) read with proviso (c) appended to Section 529(1). The “workmens portion” as contained in proviso (c) of sub-section (3) of Section 529 in relation to the security of any secured creditor means the amount which bears to the value of the security the same proportion as the amount of the workmens dues bears to the aggregate of (a) workmens due, and (b) the amount of the debts due to all the (sic secured) creditors. …..”“23. The language of Section 529-A is also clear and unequivocal, in terms whereof the workmens dues or the debts due to the secured creditors, to the extent such debts rank under clause (c) of the proviso to sub-section (1) of Section 529 pari passu with such dues, shall have priority over all other debts. Once the workmens portion is worked out in terms of proviso (c) of sub- section (1) of Section 529, indisputably the claims of the workmen as also the secured creditors will have to be paid in terms of Section 529-A. ……” 15. In the present case, the learned Company Judge and the Division Bench of the High Court have held that all secured creditors along with the workmen have pari passu charge over all the properties or assets of the company and would be entitled to the dues as secured creditors along with the workmen’s dues by way of overriding preferential payments over all other dues under Section 529A of the Companies Act. The learned Company Judge of the High Court has also relied on some observations of this Court in Andhra Bank v. Official Liquidator & Anr. (supra) in support of his order. These observations of this Court in Andhra Bank v. Official Liquidator & Anr. (supra) were in the context of the observations of this Court in Allahabad Bank v. Canara Bank & Anr. (supra) and are quoted as under: “25. While determining Point (6), however, a stray observation was made to the effect that the “workmen’s dues” have priority over all other creditors, secured and unsecured because of Section 529-A(1)(a). Such a question did not arise in the case as Allahabad Bank was indisputably an unsecured creditor.“26. Such an observation was, thus, neither required to be made keeping in view the fact situation obtaining therein nor does it find support from the clear and unambiguous language contained in Section 529-A(1)(a). We have, therefore, no hesitation in holding that finding of this Court in Allahabad Bank to the aforementioned extent does not lay down the correct law.” The aforesaid observations of this Court in Andhra Bank v. Official Liquidator & Anr. (supra) are, thus, to the effect that workmen will not have priority over the dues of the secured creditor and this is because of the unambiguous language of Section 529A (1) that the workmen’s dues and the dues of the secured creditor to the extent such debts rank under clause (c) of sub-section (1) of Section 529 pari passu with such dues will have to be paid in priority to all other debts. But as we have held, only where under the second limb of the proviso to clause (c) of sub-section (1) of Section 529 the secured creditor opts to realize the security and is unable to realize a portion of his dues because of the pari passu charge created in favour of the workmen under the first limb of the proviso, he has pari passu charge to the extent indicated in clause (c) of the proviso to sub- section (1) of Section 529 and only such debts due to the secured creditor which rank pari passu with dues of the workmen under clause (c) of the proviso to sub-section (1) of Section 529 have to be paid in priority over all other debts of the company. The High Court has clearly fallen in error by holding that all debts due to secured creditors will rank pari passu with the workmen’s dues and have to be paid along with the workmen’s dues in priority to all other debts of the company. | 1[ds]32. Reverting to the facts of the present case, the judgment of the High Court, to the extent it takes the view that the charges of the workmen and secured creditors have to rank pari passu, cannot be faulted with. However, where the learned Single Judge as well as the Division Bench of the High Court have fallen in error of law, is the computation and adjustment of the shares between the workmen, on the one hand and the secured creditors, on the other. Particularly, the learned Single Judge directed the amounts recovered from the secured creditors to be distributed between the workmen and the secured creditors in equal proportion of 50 per cent of their respective admitted claims. This order and calculation is opposed to the very scheme of the above provisions, particularly with respect to determination of theportion. Another error in the calculation that appears from the record is that though the total sale proceeds from the secured assets were Rs.108.90 crore, the Court directed the payment of only Rs.101 crore which is the aggregate of the amount directed to be paid to the workmen and to the secured creditors. Thus, there has been an error of law in applying the statutory provisions in this regard. The High Court erred in not noticing that the Company Court has not made calculation and computation in accordance with law. The Company Court as well as the Appellate Court should have considered theportion in terms of proviso to Section 529(1) and Section 529(3)(c) along with the illustration appended thereto and thereafter, its over-riding preferential payment vis-a-vis all other unsecured creditors in terms of Section 529A and 530 of the Act. Once that is done, the Court could then have settled the payment received by the Official Liquidator from the sale of the unsecured assets of UMI. The amounts, thus, are required to be recalculated in terms of the above provisions and the law stated | 1 | 6,206 | 362 | ### Instruction:
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Tribunal). This limited priority is declared in Section 529-A(1) but it is restricted only to the extent specified in clause (b) of Section 529-A(1). The said provision refers to clause (c) of the proviso to Section 529(1) and it is necessary to understand the scope of the said provision.65. Under clause (c) of the proviso to Section 529(1), the priority of the secured creditor who stands outside the winding-up is confined to the “workmens portion” as defined in Section 529(3)(c). “Workmens portion” means the amount which bears to the value of the security, the same proportion which the amount of the workmens dues bears to the aggregate of (a) workmens dues, and (b) the amounts of the debts due to all the creditors. This is explained in the illustration under the said provision. If the workmens dues in all are, say, Rs.1 lakh and the debt due to all secured creditors is Rs.3 lakhs, the total amount due to all of them comes to Rs.4 lakhs. Therefore, the workmens share comes to 25% (Rs 1 lakh out of Rs 4 lakhs). Now if the value of the security of a secured creditor (like Canara Bank) is Rs.1 lakh, the “workmens portion” will be Rs.25,000 which is the pro-rata amount to be shared by the said secured creditor. By virtue of Section 529-A(1)(b) his priority over all others out of other monies available in the Tribunal is restricted to Rs.25,000 only.” 14. In Andhra Bank v. Official Liquidator & Anr. (supra), a three-Judge Bench speaking through S.B. Sinha, J. has also discussed in paragraphs 22 and 23 the rights of secured creditors, relevant extracts from which are quoted hereinbelow: “22. In terms of the aforementioned provisions, the secured creditors have two options (i) they may desire to go before the Company Judge; or (ii) they may stand outside the winding-up proceedings. The secured creditors of the second category, however, would come within the purview of Section 529-A(1)(b) read with proviso (c) appended to Section 529(1). The “workmens portion” as contained in proviso (c) of sub-section (3) of Section 529 in relation to the security of any secured creditor means the amount which bears to the value of the security the same proportion as the amount of the workmens dues bears to the aggregate of (a) workmens due, and (b) the amount of the debts due to all the (sic secured) creditors. …..”“23. The language of Section 529-A is also clear and unequivocal, in terms whereof the workmens dues or the debts due to the secured creditors, to the extent such debts rank under clause (c) of the proviso to sub-section (1) of Section 529 pari passu with such dues, shall have priority over all other debts. Once the workmens portion is worked out in terms of proviso (c) of sub- section (1) of Section 529, indisputably the claims of the workmen as also the secured creditors will have to be paid in terms of Section 529-A. ……” 15. In the present case, the learned Company Judge and the Division Bench of the High Court have held that all secured creditors along with the workmen have pari passu charge over all the properties or assets of the company and would be entitled to the dues as secured creditors along with the workmen’s dues by way of overriding preferential payments over all other dues under Section 529A of the Companies Act. The learned Company Judge of the High Court has also relied on some observations of this Court in Andhra Bank v. Official Liquidator & Anr. (supra) in support of his order. These observations of this Court in Andhra Bank v. Official Liquidator & Anr. (supra) were in the context of the observations of this Court in Allahabad Bank v. Canara Bank & Anr. (supra) and are quoted as under: “25. While determining Point (6), however, a stray observation was made to the effect that the “workmen’s dues” have priority over all other creditors, secured and unsecured because of Section 529-A(1)(a). Such a question did not arise in the case as Allahabad Bank was indisputably an unsecured creditor.“26. Such an observation was, thus, neither required to be made keeping in view the fact situation obtaining therein nor does it find support from the clear and unambiguous language contained in Section 529-A(1)(a). We have, therefore, no hesitation in holding that finding of this Court in Allahabad Bank to the aforementioned extent does not lay down the correct law.” The aforesaid observations of this Court in Andhra Bank v. Official Liquidator & Anr. (supra) are, thus, to the effect that workmen will not have priority over the dues of the secured creditor and this is because of the unambiguous language of Section 529A (1) that the workmen’s dues and the dues of the secured creditor to the extent such debts rank under clause (c) of sub-section (1) of Section 529 pari passu with such dues will have to be paid in priority to all other debts. But as we have held, only where under the second limb of the proviso to clause (c) of sub-section (1) of Section 529 the secured creditor opts to realize the security and is unable to realize a portion of his dues because of the pari passu charge created in favour of the workmen under the first limb of the proviso, he has pari passu charge to the extent indicated in clause (c) of the proviso to sub- section (1) of Section 529 and only such debts due to the secured creditor which rank pari passu with dues of the workmen under clause (c) of the proviso to sub-section (1) of Section 529 have to be paid in priority over all other debts of the company. The High Court has clearly fallen in error by holding that all debts due to secured creditors will rank pari passu with the workmen’s dues and have to be paid along with the workmen’s dues in priority to all other debts of the company.
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### Explanation:
32. Reverting to the facts of the present case, the judgment of the High Court, to the extent it takes the view that the charges of the workmen and secured creditors have to rank pari passu, cannot be faulted with. However, where the learned Single Judge as well as the Division Bench of the High Court have fallen in error of law, is the computation and adjustment of the shares between the workmen, on the one hand and the secured creditors, on the other. Particularly, the learned Single Judge directed the amounts recovered from the secured creditors to be distributed between the workmen and the secured creditors in equal proportion of 50 per cent of their respective admitted claims. This order and calculation is opposed to the very scheme of the above provisions, particularly with respect to determination of theportion. Another error in the calculation that appears from the record is that though the total sale proceeds from the secured assets were Rs.108.90 crore, the Court directed the payment of only Rs.101 crore which is the aggregate of the amount directed to be paid to the workmen and to the secured creditors. Thus, there has been an error of law in applying the statutory provisions in this regard. The High Court erred in not noticing that the Company Court has not made calculation and computation in accordance with law. The Company Court as well as the Appellate Court should have considered theportion in terms of proviso to Section 529(1) and Section 529(3)(c) along with the illustration appended thereto and thereafter, its over-riding preferential payment vis-a-vis all other unsecured creditors in terms of Section 529A and 530 of the Act. Once that is done, the Court could then have settled the payment received by the Official Liquidator from the sale of the unsecured assets of UMI. The amounts, thus, are required to be recalculated in terms of the above provisions and the law stated
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ACG Associated Capsules Pvt. Ltd Vs. The Commissioner of Income Tax, Central-IV, Mumbai | the profits of business of an assessee as computed under the head “Profits and Gains of Business or Profession”, ninety per cent of such quantum of the receipt cannot be deducted under Explanation (baa) to Section 80HHC.12. If we now apply Explanation (baa) as interpreted by us in this judgment to the facts of the case before us, if the rent or interest is a receipt chargeable as profits and gains of business and chargeable to tax under Section 28 of the Act, and if any quantum of the rent or interest of the assessee is allowable as an expense in accordance with Sections 30 to 44D of the Act and is not to be included in the profits of the business of the assessee as computed under the head “Profits and Gains of Business or Profession”, ninety per cent of such quantum of the receipt of rent or interest will not be deducted under clause (1) of Explanation (baa) to Section 80HHC. In other words, ninety per cent of not the gross rent or gross interest but only the net interest or net rent, which has been included in the profits of business of the assessee as computed under the head “Profits and Gains of Business or Profession”, is to be deducted under clause (1) of Explanation (baa) to Section 80HHC for determining the profits of the business.13. The view that we have taken of Explanation (baa) to Section 80HHC is also the view of the Delhi High Court in Commissioner of Income-Tax v. Shri Ram Honda Power Equip (supra) and the Tribunal in the present case has followed the judgment of the Delhi High Court. On appeal being filed by the Revenue against the order of the Tribunal, the High Court has set aside the order of the Tribunal and directed the Assessing Officer to dispose of the issue in accordance with the judgment of the Bombay High Court in Commissioner of Income-Tax v. Asian Star Co. Ltd. (supra). We must, thus, examine whether reasons given by the High Court in its judgment in Commissioner of Income-Tax v. Asian Star Co. Ltd. (supra) were correct in law.14. On a perusal of the judgment of the High Court in Commissioner of Income-Tax v. Asian Star Co. Ltd. (supra), we find that the reason which weighed with the High Court for taking a different view, is that rent, commission, interest and brokerage do not possess any nexus with export turnover and, therefore, the inclusion of such items in the profits of the business would result in a distortion of the figure of export profits. The High Court has relied on a decision of this Court in Commissioner of Income-Tax v. K. Ravindranathan Nair [(2007) 295 ITR 228 (SC) ] in which the issue raised before this Court was entirely different from the issue raised in this case. In that case, the assessee owned a factory in which he processed cashew nuts grown in his farm and he exported the cashew nuts as an exporter. At the same time, the assessee processed cashew nuts which were supplied to him by exporters on job work basis and he collected processing charges for the same. He, however, did not include such processing charges collected on job work basis in his total turnover for the purpose of computing the deduction under Section 80HHC (3) of the Act and as a result this turnover of collection charges was left out in the computation of profits and gains of business of the assessee and as a result ninety per cent of the profits of the assessee arising out of the receipt of processing charges was not deducted under clauses (1) of the Explanation (baa) to Section 80HHC. This Court held that the processing charges was included in the gross total income from cashew business and hence in terms of Explanation (baa), ninety per cent of the gross total income arising from processing charges had to be deducted under Explanation (baa) to arrive at the profits of the business. In this case, this Court held that the processing charges received by the assessee were part of the business turnover and accordingly the income arising therefrom should have been included in the profits and gains of business of the assessee and ninety per cent of this income also would have to be deducted under Explanation (baa) under Section 80HHC of the Act. In this case, this Court was not deciding the issue whether ninety per cent deduction is to be made from the gross or net income of any of the receipts mentioned in clause (1) of the Explanation (baa).15. The Bombay High Court has also relied on the Memorandum explaining the clauses of the Finance Bill, 1991 contained in the circular dated 19.12.1991 of the Central Board of Direct Taxes to come to the conclusion that the Parliament intended to exclude items which were unrelated to the export turnover from the computation of deduction and while excluding such items which are unrelated to export for the purpose of Section 80HHC, Parliament has taken due note of the fact that the exporter assessee would have incurred such expenditure in earning the profits and to avoid a distorted figure of export profits, ninety per cent of the receipts like brokerage, commission, interest, rent, charges are sought to be excluded from the profits of the business. In our considered opinion, it was not necessary to refer to the explanatory Memorandum when the language of Explanation (baa) to Section 80HHC was clear that only ninety per cent of receipts by way of brokerage, commission, interest, rent, charges or any other receipt of a similar nature included in such profits computed under the head profits and gains of business of an assessee could be deducted under clause (1) of Explanation (baa) and not ninety per cent of the quantum of any of the aforesaid receipts which are allowed as expenses and therefore not included in the profits of business of the assessee. | 1[ds]11. For this interpretation of Explanation (baa) to Section 80HHC of the Act, we rely on the judgment of the Constitution Bench of this Court in Distributors (Baroda) P. Ltd. v. Union of India and Others (supra). Section 80M of the Act provided for deduction in respect of certain intercorporate dividends and it provided in sub-section (1) of Section 80M thatthe gross total income of an assessee being a company includes any income by way of dividends received by it from a domestic company, there shall, in accordance with and subject to the provisions of this Section, be allowed, in computing the total income of the assessee, a deduction from such income by way of dividends an amount equala certain percentage of the income mentioned in this Section. The Constitution Bench held that the Court must construe Section 80M on its own language and arrive at its true interpretation according to the plain natural meaning of the words used by the legislature and so construed the wordsincome by way ofin sub-section (1) of Section 80M must be referable not only to the category of income included in the gross total income but also to the quantum of the income so included. Similarly, Explanation (baa) has to be construed on its own language and as per the plain natural meaning of the words used in Explanation (baa), the wordsby way of brokerage, commission, interest, rent, charges or any other receipt of a similar nature included in suchwill not only refer to the nature of receipts but also the quantum of receipts included in the profits of the business as computed under the headand Gains of Business orreferred to in the first part of the Explanation (baa). Accordingly, if any quantum of any receipt of the nature mentioned in clause (1) of Explanation (baa) has not been included in the profits of business of an assessee as computed under the headd Gains of Business orninety per cent of such quantum of the receipt cannot be deducted under Explanation (baa) to Section 80HHC.12. If we now apply Explanation (baa) as interpreted by us in this judgment to the facts of the case before us, if the rent or interest is a receipt chargeable as profits and gains of business and chargeable to tax under Section 28 of the Act, and if any quantum of the rent or interest of the assessee is allowable as an expense in accordance with Sections 30 to 44D of the Act and is not to be included in the profits of the business of the assessee as computed under the headd Gains of Business orninety per cent of such quantum of the receipt of rent or interest will not be deducted under clause (1) of Explanation (baa) to Section 80HHC. In other words, ninety per cent of not the gross rent or gross interest but only the net interest or net rent, which has been included in the profits of business of the assessee as computed under the headd Gains of Business oris to be deducted under clause (1) of Explanation (baa) to Section 80HHC for determining the profits of the business.13. The view that we have taken of Explanation (baa) to Section 80HHC is also the view of the Delhi High Court in Commissioner of Income-Tax v. Shri Ram Honda Power Equip (supra) and the Tribunal in the present case has followed the judgment of the Delhi High Court. On appeal being filed by the Revenue against the order of the Tribunal, the High Court has set aside the order of the Tribunal and directed the Assessing Officer to dispose of the issue in accordance with the judgment of the Bombay High Court in Commissioner of Income-Tax v. Asian Star Co. Ltd. (supra). We must, thus, examine whether reasons given by the High Court in its judgment in Commissioner of Income-Tax v. Asian Star Co. Ltd. (supra) were correct in law.14. On a perusal of the judgment of the High Court in Commissioner of Income-Tax v. Asian Star Co. Ltd. (supra), we find that the reason which weighed with the High Court for taking a different view, is that rent, commission, interest and brokerage do not possess any nexus with export turnover and, therefore, the inclusion of such items in the profits of the business would result in a distortion of the figure of export profits. The High Court has relied on a decision of this Court in Commissioner of Income-Tax v. K. Ravindranathan Nair [(2007) 295 ITR 228 (SC) ] in which the issue raised before this Court was entirely different from the issue raised in this case. In that case, the assessee owned a factory in which he processed cashew nuts grown in his farm and he exported the cashew nuts as an exporter. At the same time, the assessee processed cashew nuts which were supplied to him by exporters on job work basis and he collected processing charges for the same. He, however, did not include such processing charges collected on job work basis in his total turnover for the purpose of computing the deduction under Section 80HHC (3) of the Act and as a result this turnover of collection charges was left out in the computation of profits and gains of business of the assessee and as a result ninety per cent of the profits of the assessee arising out of the receipt of processing charges was not deducted under clauses (1) of the Explanation (baa) to Section 80HHC. This Court held that the processing charges was included in the gross total income from cashew business and hence in terms of Explanation (baa), ninety per cent of the gross total income arising from processing charges had to be deducted under Explanation (baa) to arrive at the profits of the business. In this case, this Court held that the processing charges received by the assessee were part of the business turnover and accordingly the income arising therefrom should have been included in the profits and gains of business of the assessee and ninety per cent of this income also would have to be deducted under Explanation (baa) under Section 80HHC of the Act. In this case, this Court was not deciding the issue whether ninety per cent deduction is to be made from the gross or net income of any of the receipts mentioned in clause (1) of the Explanation (baa).15. The Bombay High Court has also relied on the Memorandum explaining the clauses of the Finance Bill, 1991 contained in the circular dated 19.12.1991 of the Central Board of Direct Taxes to come to the conclusion that the Parliament intended to exclude items which were unrelated to the export turnover from the computation of deduction and while excluding such items which are unrelated to export for the purpose of Section 80HHC, Parliament has taken due note of the fact that the exporter assessee would have incurred such expenditure in earning the profits and to avoid a distorted figure of export profits, ninety per cent of the receipts like brokerage, commission, interest, rent, charges are sought to be excluded from the profits of the business. In our considered opinion, it was not necessary to refer to the explanatory Memorandum when the language of Explanation (baa) to Section 80HHC was clear that only ninety per cent of receiptsby way of brokerage, commission, interest, rent, charges or any other receipt of a similar nature included in suchprofits computed under the head profits and gains of business of an assessee could be deducted under clause (1) of Explanation (baa) and not ninety per cent of the quantum of any of the aforesaid receipts which are allowed as expenses and therefore not included in the profits of business of the assessee. | 1 | 3,450 | 1,434 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
the profits of business of an assessee as computed under the head “Profits and Gains of Business or Profession”, ninety per cent of such quantum of the receipt cannot be deducted under Explanation (baa) to Section 80HHC.12. If we now apply Explanation (baa) as interpreted by us in this judgment to the facts of the case before us, if the rent or interest is a receipt chargeable as profits and gains of business and chargeable to tax under Section 28 of the Act, and if any quantum of the rent or interest of the assessee is allowable as an expense in accordance with Sections 30 to 44D of the Act and is not to be included in the profits of the business of the assessee as computed under the head “Profits and Gains of Business or Profession”, ninety per cent of such quantum of the receipt of rent or interest will not be deducted under clause (1) of Explanation (baa) to Section 80HHC. In other words, ninety per cent of not the gross rent or gross interest but only the net interest or net rent, which has been included in the profits of business of the assessee as computed under the head “Profits and Gains of Business or Profession”, is to be deducted under clause (1) of Explanation (baa) to Section 80HHC for determining the profits of the business.13. The view that we have taken of Explanation (baa) to Section 80HHC is also the view of the Delhi High Court in Commissioner of Income-Tax v. Shri Ram Honda Power Equip (supra) and the Tribunal in the present case has followed the judgment of the Delhi High Court. On appeal being filed by the Revenue against the order of the Tribunal, the High Court has set aside the order of the Tribunal and directed the Assessing Officer to dispose of the issue in accordance with the judgment of the Bombay High Court in Commissioner of Income-Tax v. Asian Star Co. Ltd. (supra). We must, thus, examine whether reasons given by the High Court in its judgment in Commissioner of Income-Tax v. Asian Star Co. Ltd. (supra) were correct in law.14. On a perusal of the judgment of the High Court in Commissioner of Income-Tax v. Asian Star Co. Ltd. (supra), we find that the reason which weighed with the High Court for taking a different view, is that rent, commission, interest and brokerage do not possess any nexus with export turnover and, therefore, the inclusion of such items in the profits of the business would result in a distortion of the figure of export profits. The High Court has relied on a decision of this Court in Commissioner of Income-Tax v. K. Ravindranathan Nair [(2007) 295 ITR 228 (SC) ] in which the issue raised before this Court was entirely different from the issue raised in this case. In that case, the assessee owned a factory in which he processed cashew nuts grown in his farm and he exported the cashew nuts as an exporter. At the same time, the assessee processed cashew nuts which were supplied to him by exporters on job work basis and he collected processing charges for the same. He, however, did not include such processing charges collected on job work basis in his total turnover for the purpose of computing the deduction under Section 80HHC (3) of the Act and as a result this turnover of collection charges was left out in the computation of profits and gains of business of the assessee and as a result ninety per cent of the profits of the assessee arising out of the receipt of processing charges was not deducted under clauses (1) of the Explanation (baa) to Section 80HHC. This Court held that the processing charges was included in the gross total income from cashew business and hence in terms of Explanation (baa), ninety per cent of the gross total income arising from processing charges had to be deducted under Explanation (baa) to arrive at the profits of the business. In this case, this Court held that the processing charges received by the assessee were part of the business turnover and accordingly the income arising therefrom should have been included in the profits and gains of business of the assessee and ninety per cent of this income also would have to be deducted under Explanation (baa) under Section 80HHC of the Act. In this case, this Court was not deciding the issue whether ninety per cent deduction is to be made from the gross or net income of any of the receipts mentioned in clause (1) of the Explanation (baa).15. The Bombay High Court has also relied on the Memorandum explaining the clauses of the Finance Bill, 1991 contained in the circular dated 19.12.1991 of the Central Board of Direct Taxes to come to the conclusion that the Parliament intended to exclude items which were unrelated to the export turnover from the computation of deduction and while excluding such items which are unrelated to export for the purpose of Section 80HHC, Parliament has taken due note of the fact that the exporter assessee would have incurred such expenditure in earning the profits and to avoid a distorted figure of export profits, ninety per cent of the receipts like brokerage, commission, interest, rent, charges are sought to be excluded from the profits of the business. In our considered opinion, it was not necessary to refer to the explanatory Memorandum when the language of Explanation (baa) to Section 80HHC was clear that only ninety per cent of receipts by way of brokerage, commission, interest, rent, charges or any other receipt of a similar nature included in such profits computed under the head profits and gains of business of an assessee could be deducted under clause (1) of Explanation (baa) and not ninety per cent of the quantum of any of the aforesaid receipts which are allowed as expenses and therefore not included in the profits of business of the assessee.
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### Explanation:
the nature mentioned in clause (1) of Explanation (baa) has not been included in the profits of business of an assessee as computed under the headd Gains of Business orninety per cent of such quantum of the receipt cannot be deducted under Explanation (baa) to Section 80HHC.12. If we now apply Explanation (baa) as interpreted by us in this judgment to the facts of the case before us, if the rent or interest is a receipt chargeable as profits and gains of business and chargeable to tax under Section 28 of the Act, and if any quantum of the rent or interest of the assessee is allowable as an expense in accordance with Sections 30 to 44D of the Act and is not to be included in the profits of the business of the assessee as computed under the headd Gains of Business orninety per cent of such quantum of the receipt of rent or interest will not be deducted under clause (1) of Explanation (baa) to Section 80HHC. In other words, ninety per cent of not the gross rent or gross interest but only the net interest or net rent, which has been included in the profits of business of the assessee as computed under the headd Gains of Business oris to be deducted under clause (1) of Explanation (baa) to Section 80HHC for determining the profits of the business.13. The view that we have taken of Explanation (baa) to Section 80HHC is also the view of the Delhi High Court in Commissioner of Income-Tax v. Shri Ram Honda Power Equip (supra) and the Tribunal in the present case has followed the judgment of the Delhi High Court. On appeal being filed by the Revenue against the order of the Tribunal, the High Court has set aside the order of the Tribunal and directed the Assessing Officer to dispose of the issue in accordance with the judgment of the Bombay High Court in Commissioner of Income-Tax v. Asian Star Co. Ltd. (supra). We must, thus, examine whether reasons given by the High Court in its judgment in Commissioner of Income-Tax v. Asian Star Co. Ltd. (supra) were correct in law.14. On a perusal of the judgment of the High Court in Commissioner of Income-Tax v. Asian Star Co. Ltd. (supra), we find that the reason which weighed with the High Court for taking a different view, is that rent, commission, interest and brokerage do not possess any nexus with export turnover and, therefore, the inclusion of such items in the profits of the business would result in a distortion of the figure of export profits. The High Court has relied on a decision of this Court in Commissioner of Income-Tax v. K. Ravindranathan Nair [(2007) 295 ITR 228 (SC) ] in which the issue raised before this Court was entirely different from the issue raised in this case. In that case, the assessee owned a factory in which he processed cashew nuts grown in his farm and he exported the cashew nuts as an exporter. At the same time, the assessee processed cashew nuts which were supplied to him by exporters on job work basis and he collected processing charges for the same. He, however, did not include such processing charges collected on job work basis in his total turnover for the purpose of computing the deduction under Section 80HHC (3) of the Act and as a result this turnover of collection charges was left out in the computation of profits and gains of business of the assessee and as a result ninety per cent of the profits of the assessee arising out of the receipt of processing charges was not deducted under clauses (1) of the Explanation (baa) to Section 80HHC. This Court held that the processing charges was included in the gross total income from cashew business and hence in terms of Explanation (baa), ninety per cent of the gross total income arising from processing charges had to be deducted under Explanation (baa) to arrive at the profits of the business. In this case, this Court held that the processing charges received by the assessee were part of the business turnover and accordingly the income arising therefrom should have been included in the profits and gains of business of the assessee and ninety per cent of this income also would have to be deducted under Explanation (baa) under Section 80HHC of the Act. In this case, this Court was not deciding the issue whether ninety per cent deduction is to be made from the gross or net income of any of the receipts mentioned in clause (1) of the Explanation (baa).15. The Bombay High Court has also relied on the Memorandum explaining the clauses of the Finance Bill, 1991 contained in the circular dated 19.12.1991 of the Central Board of Direct Taxes to come to the conclusion that the Parliament intended to exclude items which were unrelated to the export turnover from the computation of deduction and while excluding such items which are unrelated to export for the purpose of Section 80HHC, Parliament has taken due note of the fact that the exporter assessee would have incurred such expenditure in earning the profits and to avoid a distorted figure of export profits, ninety per cent of the receipts like brokerage, commission, interest, rent, charges are sought to be excluded from the profits of the business. In our considered opinion, it was not necessary to refer to the explanatory Memorandum when the language of Explanation (baa) to Section 80HHC was clear that only ninety per cent of receiptsby way of brokerage, commission, interest, rent, charges or any other receipt of a similar nature included in suchprofits computed under the head profits and gains of business of an assessee could be deducted under clause (1) of Explanation (baa) and not ninety per cent of the quantum of any of the aforesaid receipts which are allowed as expenses and therefore not included in the profits of business of the assessee.
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Nayankumar Shivappa Waghmare Vs. State of Maharashtra | Deshmukh (complainant) wherein he has taken a somersault and told that the amount was not demanded by the accused. It is on the basis of the part of the statement on which benefit of reasonable doubt appears to have been given by the trial Court. It is contended on behalf of the appellant that demand of bribe is not proved on the record. 14. In our opinion, considering the fact that the statement of the key witness PW-9 Anant Deshmukh was recorded almost after three years of the incident, and the cross-examination was not done on the same day when the examination-in-chief was recorded, there was every reason to believe that the witness had lost the interest and won over by the accused. There is nothing on record as to why if the amount was not demanded and the papers relating to post retrial dues were being cleared by the accused, PW-9 Anant Deshmukh made a written complaint to the Anti Corruption Bureau on the date when his sister’s papers were being cleared. 15. In this connection we agree with the High Court that the trial Court while appreciating the prosecution evidence completely ignored the presumption required to be taken under sub-section (1) of Section 20 of the Prevention of Corruption Act, 1988. Sub-section (1) of Section 20 provides that where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) of sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate. Apart from this suggestion made on behalf of the accused to the PW-1 Uttam Bhutekar, PW-3 Sahebrao Wanve and PW-9 Anant Deshmukh, it is clear that the accused has admitted that three currency notes were recovered from his pocket by the raiding party. In such circumstances, in the present case, there was no question of giving benefit of reasonable doubt to the accused. 16. In Himachal Pradesh Administration V. Om Prakash, (1972) 1 SCC 249 explaining the expression “reasonable doubt”, this Court has observed as under:- “It is not beyond the ken of experienced able and abutted lawyers to raise doubts and uncertainties in respect of the prosecution evidence either during trial by cross-examination or by the marshalling of that evidence in the manner in which the emphasis is placed thereon. But what has to ho borne in mind is that the penumbra of uncertainty in the evidence before ft Court is generally due to the nature and quality it may be the witnesses as are lying or where they are honest and truthful, they are not certain. It is therefore, difficult to expect a scientific or mathematical exactitude while dealing with such evidence or arriving at a true conclusion. Because of these difficulties corroboration is sought wherever possible and the maxim that the accused should be given the benefit of doubt becomes pivotal in the prosecution of offenders which in other words means that the prosecution must prove its case against an accused beyond reasonable doubt by a sufficiency of credible evidence. The benefit of doubt to which the accused is entitled is reasonable doubt — the doubt which rational thinking men will reasonably, honestly and conscientiously entertain and not the doubt of a timid mind which fights shy—though unwittingly it may be — or is afraid of the logical consequences, if that benefit was not given. Or as one great Judge said it is “not the doubt of a vacillating mind that has not the moral courage to decide but shelters itself in a vain and idle scepticism”. It does not mean that the evidence must be so strong as to exclude even a remote possibility that the accused could not have committed the offence. If that were so the law would fail to protect society as in no case can such a possibility be excluded. It will give room for fanciful conjectures or untenable doubts and will result in deflecting the course of justice if not thwarting it altogether.” 17. In view of law laid down by this Court, as above, and after considering evidence on record in the light of Section 20 of Prevention of Corruption Act, 1988, we hold that the trial Court did err in law in giving benefit of reasonable doubt in the present case relating to corruption. In the case of Niranjan Hemchandra Sashithal and another v. State of Maharashtra (2013) 4 SCC 642 this Court has discussed gravity of the corruption cases in following words: - “26. It can be stated without any fear of contradiction that corruption is not to be judged by degree, for corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of the institutions, paralyses the economic health of a country, corrodes the sense of civility and mars the marrows of governance. It is worth noting that immoral acquisition of wealth destroys the energy of the people believing in honesty, and history records with agony how they have suffered.” 18. For the reasons, as discussed above, after going through the record of the case, and considering the rival submissions of learned Counsel for the parties, we find no reasons to interfere with the impugned order passed by the High Court convicting and sentencing the appellant under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. Therefore, the appeal is liable to be dismissed. 19. | 0[ds]12. The above argument advanced on behalf of the appellant, in the Present case is misconceived for the reason that if the same is accepted, there cannot be any case where appeal against acquittal can be allowed, and the error committed by the trial Court can beperusal of the imouoned judgment shows that after discussing the evidence on record, the High Court has come to a definite conclusion that the trial Court has erred in law in coming to the conclusion that the charge in respect of offence Punishable undeletions 7 and 13(1) read with Section 13(2) of the Prevention of Corruption Act, 1988 is established. The High Court has clearly held that the trial Court erred in law in giving benefit of reasonable doubt to the accused in the present case. After going through the evidence on record we are also of the opinion that it is not a case where two views are possible. As such, we do not find any illegality in the impugned order reversing the order of acquittal recorded by the trial Court.In our opinion, considering the fact that the statement of the key witnessAnant Deshmukh was recorded almost after three years of the incident, and thewas not done on the same day when thewas recorded, there was every reason to believe that the witness had lost the interest and won over by the accused.In this connection we agree with the High Court that the trial Court while appreciating the prosecution evidence completely ignored the presumption required to be taken under(1) of Section 20 of the Prevention of Corruption Act, 1988.For the reasons, as discussed above, after going through the record of the case, and considering the rival submissions of learned Counsel for the parties, we find no reasons to interfere with the impugned order passed by the High Court convicting and sentencing the appellant under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. Therefore, the appeal is liable to be dismissed. | 0 | 3,414 | 379 | ### 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:
Deshmukh (complainant) wherein he has taken a somersault and told that the amount was not demanded by the accused. It is on the basis of the part of the statement on which benefit of reasonable doubt appears to have been given by the trial Court. It is contended on behalf of the appellant that demand of bribe is not proved on the record. 14. In our opinion, considering the fact that the statement of the key witness PW-9 Anant Deshmukh was recorded almost after three years of the incident, and the cross-examination was not done on the same day when the examination-in-chief was recorded, there was every reason to believe that the witness had lost the interest and won over by the accused. There is nothing on record as to why if the amount was not demanded and the papers relating to post retrial dues were being cleared by the accused, PW-9 Anant Deshmukh made a written complaint to the Anti Corruption Bureau on the date when his sister’s papers were being cleared. 15. In this connection we agree with the High Court that the trial Court while appreciating the prosecution evidence completely ignored the presumption required to be taken under sub-section (1) of Section 20 of the Prevention of Corruption Act, 1988. Sub-section (1) of Section 20 provides that where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) of sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate. Apart from this suggestion made on behalf of the accused to the PW-1 Uttam Bhutekar, PW-3 Sahebrao Wanve and PW-9 Anant Deshmukh, it is clear that the accused has admitted that three currency notes were recovered from his pocket by the raiding party. In such circumstances, in the present case, there was no question of giving benefit of reasonable doubt to the accused. 16. In Himachal Pradesh Administration V. Om Prakash, (1972) 1 SCC 249 explaining the expression “reasonable doubt”, this Court has observed as under:- “It is not beyond the ken of experienced able and abutted lawyers to raise doubts and uncertainties in respect of the prosecution evidence either during trial by cross-examination or by the marshalling of that evidence in the manner in which the emphasis is placed thereon. But what has to ho borne in mind is that the penumbra of uncertainty in the evidence before ft Court is generally due to the nature and quality it may be the witnesses as are lying or where they are honest and truthful, they are not certain. It is therefore, difficult to expect a scientific or mathematical exactitude while dealing with such evidence or arriving at a true conclusion. Because of these difficulties corroboration is sought wherever possible and the maxim that the accused should be given the benefit of doubt becomes pivotal in the prosecution of offenders which in other words means that the prosecution must prove its case against an accused beyond reasonable doubt by a sufficiency of credible evidence. The benefit of doubt to which the accused is entitled is reasonable doubt — the doubt which rational thinking men will reasonably, honestly and conscientiously entertain and not the doubt of a timid mind which fights shy—though unwittingly it may be — or is afraid of the logical consequences, if that benefit was not given. Or as one great Judge said it is “not the doubt of a vacillating mind that has not the moral courage to decide but shelters itself in a vain and idle scepticism”. It does not mean that the evidence must be so strong as to exclude even a remote possibility that the accused could not have committed the offence. If that were so the law would fail to protect society as in no case can such a possibility be excluded. It will give room for fanciful conjectures or untenable doubts and will result in deflecting the course of justice if not thwarting it altogether.” 17. In view of law laid down by this Court, as above, and after considering evidence on record in the light of Section 20 of Prevention of Corruption Act, 1988, we hold that the trial Court did err in law in giving benefit of reasonable doubt in the present case relating to corruption. In the case of Niranjan Hemchandra Sashithal and another v. State of Maharashtra (2013) 4 SCC 642 this Court has discussed gravity of the corruption cases in following words: - “26. It can be stated without any fear of contradiction that corruption is not to be judged by degree, for corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of the institutions, paralyses the economic health of a country, corrodes the sense of civility and mars the marrows of governance. It is worth noting that immoral acquisition of wealth destroys the energy of the people believing in honesty, and history records with agony how they have suffered.” 18. For the reasons, as discussed above, after going through the record of the case, and considering the rival submissions of learned Counsel for the parties, we find no reasons to interfere with the impugned order passed by the High Court convicting and sentencing the appellant under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. Therefore, the appeal is liable to be dismissed. 19.
### Response:
0
### Explanation:
12. The above argument advanced on behalf of the appellant, in the Present case is misconceived for the reason that if the same is accepted, there cannot be any case where appeal against acquittal can be allowed, and the error committed by the trial Court can beperusal of the imouoned judgment shows that after discussing the evidence on record, the High Court has come to a definite conclusion that the trial Court has erred in law in coming to the conclusion that the charge in respect of offence Punishable undeletions 7 and 13(1) read with Section 13(2) of the Prevention of Corruption Act, 1988 is established. The High Court has clearly held that the trial Court erred in law in giving benefit of reasonable doubt to the accused in the present case. After going through the evidence on record we are also of the opinion that it is not a case where two views are possible. As such, we do not find any illegality in the impugned order reversing the order of acquittal recorded by the trial Court.In our opinion, considering the fact that the statement of the key witnessAnant Deshmukh was recorded almost after three years of the incident, and thewas not done on the same day when thewas recorded, there was every reason to believe that the witness had lost the interest and won over by the accused.In this connection we agree with the High Court that the trial Court while appreciating the prosecution evidence completely ignored the presumption required to be taken under(1) of Section 20 of the Prevention of Corruption Act, 1988.For the reasons, as discussed above, after going through the record of the case, and considering the rival submissions of learned Counsel for the parties, we find no reasons to interfere with the impugned order passed by the High Court convicting and sentencing the appellant under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. Therefore, the appeal is liable to be dismissed.
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Gowlibuddanna Vs. Commissioner Of Income-Tax, Mysore,Bangalore | survivorship by the sole surviving male member of a Hindu undivided family can be taxed in the hands of such male member as his own individual income for the purpose of assessment to super-tax under S. 55 of the Indian Income-tax Act, 1922." Commissioner of Income-tax v. A. P. Swamy Gomedalli, 1937-5 ITR 416: (AIR 1937 PC 239 )13. It may however be recalled that in Kalyanji Vithaldass case, 1937-5 ITR 90: 64 Ind App 28: (AIR 1937 PC 36 ) income assessed to tax belonged separately to four out of six partners: of the remaining two it was from an ancestral source, but the fact that each such partner had a wife or daughter did not make that income from an ancestral source income of the undivided family of the partner, his wife and daughter. In Gomedalli Lakshminarayans case, 1935-3 ITR 367 : (AIR 1935 Bom 412 ) the property from which income accrued belonged to a Hindu undivided family and the effect of the death of the father who was a manager was merely to invest the rights of a manager upon the son. The income from the property was and continued to remain the income of the undivided family. This distinction which had a vital bearing on the issue falling to be determined, was not given effect to by the Judicial Committee in A. P. Swamy Gomedallis case, 1937-5 ITR 416 (AIR 1937 PC 239 ).14. A recent judgment of the Judicial Committee in a case arising from Ceylon - Attorney-General of Ceylon v. A. R. Arunachalam Chettiar, (No. 2), 1957 AC 540: (1957-34 ITR Supp 42) is in point. One Arnuachalam - a nattukottai Chettiar - and his son constituted a joint family governed by the Mitakshara School of Hindu law. The father and the son were domiciled in India and had trading and other interests in India, Ceylon and Far Eastern Countries vide Attorney-General v. A. R. Arunachalam Chettiar (No. 1), (1957) AC 513. The undivided son died in 1934 and Arunachalam became the sole surviving coparcener in a Hindu undivided family to which a number of female members belonged. Arunachalam died in 1938, shortly after the Estate Duty Ordinance No. 1 of 1938 came into operation in Ceylon. By S. 73 of the Ordinance it was provided that property passing on the death of a member of a Hindu undivided family was exempt from payment of estate duty. At all material times, the female members of the family had the right of maintenance and other rights which belonged to them as such members. The widows in the family including the widow of the predeceased son had also the power to introduce coparcencers in the family by adoption, and that power was exercised after the death of Arunachalam. On a claim to estate duty in respect of Arunachalams estate in Ceylon, it was held that Arunachalam was at his death a member of a Hindu undivided family, the same undivided family of which his son, when alive was a member, and of which the continuity was preserved after Arunachalams death by adoptions by the widows of the family. The Judicial Committee observed at p. 543:"............... though it may be correct to speak of him (the sole surviving coparcener) as the "owner", yet it is still correct to describe that which he owns as the joint family property. For his ownership is such that upon the adoption of a son it assumes a different quality: it is such too, that female members of the family (whose members may increase) have a right to maintenance out of it and in some circumstances to a charge for maintenance upon it. And these are incidents which arise, notwithstanding his so-called ownership, just because the property has been and has not ceased to be joint family property. * * * it would not appear reasonable to impart to the legislature the intention to discriminate, so long as the family itself subsists, between property in the hands of a single coparcener and that in the hands of two or more coparceners." Dealing with the question whether a single coparcener can alienate the property in a manner not open to one of several coparceners, they observed that it was, an irrelevant consideration. Let it be assumed that his power of alienation is unassailable: that means no more than that he has in the circumstances the power to alienate joint family property. That is what it is until he alienates it, and, if he does not alienate it, that is what it remains. The fatal flaw in the argument of the appellant appeared to be that, having labelled the surviving coparcener "owner," he then attributed to his ownership such a congeries of rights that the property could no longer be called "joint family property." The family, a body fluctuating in numbers and comprised of male and female members, may equally well be said to be owners of the property, but owners whose ownership is qualified by the powers of the coparceners. There is in fact nothing to be gained by the use of the word "owner" in this connexion. It is only by analysing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as "joint property" of the undivided family."Property of a joint family therefore does not cease to belong to the family merely because the family is represented by a single coparcener who possesses rights which an owner of property may possess. In the case in hand the property which yielded the income originally belonged to a Hindu undivided family. On the death of Buddappa, the family which included a widow and females born in the family was represented by Buddanna alone, but the property still continued to belong to that undivided family and income received therefrom was taxable as income of the Hindu undivided family. | 0[ds]Under S. 3 of the Income-tax Act not a Hindu coparcenary but a Hindu undivided family is one of the assessable entities. A Hindu joint family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. A Hindu coparcenary is a much narrower body then the joint family: it includes only those persons who acquire by birth an interest in the joint or coparcenary property, these being the sons, grandsons, and great-grandsons of the holder of the joint property for the time being. Therefore there may be a joint Hindu family consisting of a single male member and widows of deceasedJudicial Committee accordingly held that in none of the six appeals before them could the income falling to be shares of the partners of a registered firm be treated as income of a Hindu undivided family and assessed on that footing. In the view of the Judicial Committee, income received by four out of the six partners was their separate income: in the case of the remaining two partners the income was from sources which were ancestral. But merely because the source was held by a member who had received it from his father and was on that account ancestral, the income could not be deemed for purposes of assessment to be income of a Hindu undivided family, even though Kanji had a wife and a daughter, and Sewdas had a wife who had rights to be maintained under the Hinduof a joint family therefore does not cease to belong to the family merely because the family is represented by a single coparcener who possesses rights which an owner of property may possess. In the case in hand the property which yielded the income originally belonged to a Hindu undivided family. On the death of Buddappa, the family which included a widow and females born in the family was represented by Buddanna alone, but the property still continued to belong to that undivided family and income received therefrom was taxable as income of the Hindu undivided family. | 0 | 4,255 | 368 | ### 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:
survivorship by the sole surviving male member of a Hindu undivided family can be taxed in the hands of such male member as his own individual income for the purpose of assessment to super-tax under S. 55 of the Indian Income-tax Act, 1922." Commissioner of Income-tax v. A. P. Swamy Gomedalli, 1937-5 ITR 416: (AIR 1937 PC 239 )13. It may however be recalled that in Kalyanji Vithaldass case, 1937-5 ITR 90: 64 Ind App 28: (AIR 1937 PC 36 ) income assessed to tax belonged separately to four out of six partners: of the remaining two it was from an ancestral source, but the fact that each such partner had a wife or daughter did not make that income from an ancestral source income of the undivided family of the partner, his wife and daughter. In Gomedalli Lakshminarayans case, 1935-3 ITR 367 : (AIR 1935 Bom 412 ) the property from which income accrued belonged to a Hindu undivided family and the effect of the death of the father who was a manager was merely to invest the rights of a manager upon the son. The income from the property was and continued to remain the income of the undivided family. This distinction which had a vital bearing on the issue falling to be determined, was not given effect to by the Judicial Committee in A. P. Swamy Gomedallis case, 1937-5 ITR 416 (AIR 1937 PC 239 ).14. A recent judgment of the Judicial Committee in a case arising from Ceylon - Attorney-General of Ceylon v. A. R. Arunachalam Chettiar, (No. 2), 1957 AC 540: (1957-34 ITR Supp 42) is in point. One Arnuachalam - a nattukottai Chettiar - and his son constituted a joint family governed by the Mitakshara School of Hindu law. The father and the son were domiciled in India and had trading and other interests in India, Ceylon and Far Eastern Countries vide Attorney-General v. A. R. Arunachalam Chettiar (No. 1), (1957) AC 513. The undivided son died in 1934 and Arunachalam became the sole surviving coparcener in a Hindu undivided family to which a number of female members belonged. Arunachalam died in 1938, shortly after the Estate Duty Ordinance No. 1 of 1938 came into operation in Ceylon. By S. 73 of the Ordinance it was provided that property passing on the death of a member of a Hindu undivided family was exempt from payment of estate duty. At all material times, the female members of the family had the right of maintenance and other rights which belonged to them as such members. The widows in the family including the widow of the predeceased son had also the power to introduce coparcencers in the family by adoption, and that power was exercised after the death of Arunachalam. On a claim to estate duty in respect of Arunachalams estate in Ceylon, it was held that Arunachalam was at his death a member of a Hindu undivided family, the same undivided family of which his son, when alive was a member, and of which the continuity was preserved after Arunachalams death by adoptions by the widows of the family. The Judicial Committee observed at p. 543:"............... though it may be correct to speak of him (the sole surviving coparcener) as the "owner", yet it is still correct to describe that which he owns as the joint family property. For his ownership is such that upon the adoption of a son it assumes a different quality: it is such too, that female members of the family (whose members may increase) have a right to maintenance out of it and in some circumstances to a charge for maintenance upon it. And these are incidents which arise, notwithstanding his so-called ownership, just because the property has been and has not ceased to be joint family property. * * * it would not appear reasonable to impart to the legislature the intention to discriminate, so long as the family itself subsists, between property in the hands of a single coparcener and that in the hands of two or more coparceners." Dealing with the question whether a single coparcener can alienate the property in a manner not open to one of several coparceners, they observed that it was, an irrelevant consideration. Let it be assumed that his power of alienation is unassailable: that means no more than that he has in the circumstances the power to alienate joint family property. That is what it is until he alienates it, and, if he does not alienate it, that is what it remains. The fatal flaw in the argument of the appellant appeared to be that, having labelled the surviving coparcener "owner," he then attributed to his ownership such a congeries of rights that the property could no longer be called "joint family property." The family, a body fluctuating in numbers and comprised of male and female members, may equally well be said to be owners of the property, but owners whose ownership is qualified by the powers of the coparceners. There is in fact nothing to be gained by the use of the word "owner" in this connexion. It is only by analysing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as "joint property" of the undivided family."Property of a joint family therefore does not cease to belong to the family merely because the family is represented by a single coparcener who possesses rights which an owner of property may possess. In the case in hand the property which yielded the income originally belonged to a Hindu undivided family. On the death of Buddappa, the family which included a widow and females born in the family was represented by Buddanna alone, but the property still continued to belong to that undivided family and income received therefrom was taxable as income of the Hindu undivided family.
### Response:
0
### Explanation:
Under S. 3 of the Income-tax Act not a Hindu coparcenary but a Hindu undivided family is one of the assessable entities. A Hindu joint family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. A Hindu coparcenary is a much narrower body then the joint family: it includes only those persons who acquire by birth an interest in the joint or coparcenary property, these being the sons, grandsons, and great-grandsons of the holder of the joint property for the time being. Therefore there may be a joint Hindu family consisting of a single male member and widows of deceasedJudicial Committee accordingly held that in none of the six appeals before them could the income falling to be shares of the partners of a registered firm be treated as income of a Hindu undivided family and assessed on that footing. In the view of the Judicial Committee, income received by four out of the six partners was their separate income: in the case of the remaining two partners the income was from sources which were ancestral. But merely because the source was held by a member who had received it from his father and was on that account ancestral, the income could not be deemed for purposes of assessment to be income of a Hindu undivided family, even though Kanji had a wife and a daughter, and Sewdas had a wife who had rights to be maintained under the Hinduof a joint family therefore does not cease to belong to the family merely because the family is represented by a single coparcener who possesses rights which an owner of property may possess. In the case in hand the property which yielded the income originally belonged to a Hindu undivided family. On the death of Buddappa, the family which included a widow and females born in the family was represented by Buddanna alone, but the property still continued to belong to that undivided family and income received therefrom was taxable as income of the Hindu undivided family.
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Urmila Devi & Others Vs. The Deity, Mandir Shree Chamunda Devi, Through Temple Commissioner & Others | to the plaintiff, it shall award him such compensation accordingly.(4) In determining the amount of any compensation awarded under this section, the court shall be guided by the principles specified in section 73 of the Indian Contract Act, 1872 (9 of 1872).(5) No compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint:Provided that where the plaintiff has not claimed any such compensation in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such compensation.Explanation.- The circumstances that the contract has become incapable of specific performance does not preclude the court from exercising the jurisdiction conferred by this section."12. This Court had occasion to consider Section 21 of the Specific Relief Act in context of a case which arose almost on similar facts in Jagdish Singh vs. Nathu Singh, 1992 (1) SCC 647. In the above case also suit was filed for specific performance on the basis of a contract to sell dated July 3, 1973, the suit was dismissed by the trial court as well as First Appellate Court. However, the High Court in second appeal reversed the finding of the courts below and held that plaintiff was ready and willing to perform the contract and was entitled for decree. In the above case also during the pendency of the second appeal before the High Court, proceedings for compulsory acquisition of the land was initiated and the land was acquired. Question arose as to whether plaintiff was entitled for the amount of compensation received in the land acquisition proceedings or was entitled only to the refund of the earnest money. The High Court in the above case has modified the decree of the specific performance of the contract with decree for a realisation of compensation payable in lieu of acquisition. In paragraph 13 of the judgment the directions of the High Court were extracted which is 10 to the following effect:"13. The High Court issued these consequential directions:"If the decree for specific performance of contract in question is found incapable of being executed due to acquisition of subject land, the decree shall stand suitably substituted by a decree for realisation of compensation payable in lieu thereof as may be or have been determined under the relevant Act and the plaintiff shall have a right to recover such compensation together with solatium and interest due thereon. The plaintiff shall have a right to recover it from the defendant if the defendant has already realised these amounts and in that event the defendant shall be further liable to pay interest at the rate of per cent from the date of realisation by him to the date of payment on the entire amount realised in respect of the disputed land."13. In the above context, this Court proceeded to examine the ambit and scope of Section 21 of the Specific Relief Act. This Court came to the opinion that when the contract has become impossible with no fault of the plaintiff, Section 21 enables the Court to award compensation in lieu of the specific performance.Paragraphs 24, 29 and 30 are extracted below:"24. When the plaintiff by his option has made specific performance impossible, Section 21 does not entitle him to seek damages. That position is common to both Section 2 of Lord Cairns Act, 1858 and Section 21 of the Specific Relief Act, 1963. But in Indian law where the contract, for no fault of the plaintiff, becomes impossible of performance Section 21 enables award of compensation in lieu and substitution of specific performance.29. In the present case there is no difficulty in assessing the quantum of the compensation. That is ascertainable with reference to the determination of the market value in the land acquisition proceedings. The compensation awarded may safely be taken to be the measure of damages subject, of course, to the deduction therefrom of money value of the services, time and energy expended by the appellant in pursuing the claims of compensation and the expenditure incurred by him in the litigation culminating in the award.30. We accordingly confirm the finding of the High Court that respondent was willing and ready to perform the contract and that it was the appellant who was in breach. However, in substitution of the decree for specific performance, we make a decree for compensation, equivalent to the amount of the land acquisition compensation awarded for the suit lands together with solatium and accrued interest, less a sum of Rs 1,50,000 (one lakh fifty thousand only) which, by a rough and ready estimate, we quantify as the amount to be paid to the appellant in respect of his services, time and money expended in pursuing the legal claims for compensation."14. This Court in Kanshi Ram vs. Om Prakash Jawal and others, 1996 (4) SCC 593 , has again in context of suit for specific performance of the contract held that granting decree for specific performance of contract is one of the discretion to be exercised on sound principles. When the court gets into equity jurisdiction, it would be guided by justice, equity, good conscience and fairness to both the parties.15. From materials brought on record, it does appear compensation was determined in favour of defendant No.6 to the extent of amount of Rs.10,03,743/. It also appears that compensation towards shops was also determined. The name of defendant No.6 being recorded in the Revenue records, compensation was determined in its favour. In view of the judgment and decree of courts below whereby the gift deed dated 08.07.1991 has been declared void, defendant No.6 is left with no right in the suit land and is clearly not entitled to receive any amount consequent to the acquisition of the suit land. It has not come on the record as to whether compensation consequent to the acquisition of the suit land has been received by defendant No.6(respondent No.1 to the appeal) or not.16. | 1[ds]9. From the facts and material on record, it is undisputed that agreement to sell was executed by defendant Nos.1 t 5 in favour of the plaintiff and entire sale consideration of Rs.90,000/was received and possession was delivered in the year 1989 itself. Plaintiff constructed three shops on the suit land. Plaintiffs case that to defeat the rights of the plaintiff a gift deed dated 08.07.1991 was executed by defendant Nos.1 to 5 in favour of defendant No.6 has been accepted by courts below which have declared the gift deed as null and void. The decree for specific performance was granted by the trial court, it was confirmed by the First Appellate Court. The suit land was acquired and compensation was determined in favour of defendant No.6 whose name was recorded in the Revenue records. No objection can be taken to the view of the High Court that consequent of the acquisition of suit land under the land acquisition proceedings decree of specific performance granted in favour of plaintiff could not have been maintained.From materials brought on record, it does appear compensation was determined in favour of defendant No.6 to the extent of amount of Rs.10,03,743/. It also appears that compensation towards shops was also determined. The name of defendant No.6 being recorded in the Revenue records, compensation was determined in its favour. In view of the judgment and decree of courts below whereby the gift deed dated 08.07.1991 has been declared void, defendant No.6 is left with no right in the suit land and is clearly not entitled to receive any amount consequent to the acquisition of the suit land. It has not come on the record as to whether compensation consequent to the acquisition of the suit land has been received by defendant No.6(respondent No.1 to the appeal) or not. | 1 | 2,391 | 325 | ### 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:
to the plaintiff, it shall award him such compensation accordingly.(4) In determining the amount of any compensation awarded under this section, the court shall be guided by the principles specified in section 73 of the Indian Contract Act, 1872 (9 of 1872).(5) No compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint:Provided that where the plaintiff has not claimed any such compensation in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such compensation.Explanation.- The circumstances that the contract has become incapable of specific performance does not preclude the court from exercising the jurisdiction conferred by this section."12. This Court had occasion to consider Section 21 of the Specific Relief Act in context of a case which arose almost on similar facts in Jagdish Singh vs. Nathu Singh, 1992 (1) SCC 647. In the above case also suit was filed for specific performance on the basis of a contract to sell dated July 3, 1973, the suit was dismissed by the trial court as well as First Appellate Court. However, the High Court in second appeal reversed the finding of the courts below and held that plaintiff was ready and willing to perform the contract and was entitled for decree. In the above case also during the pendency of the second appeal before the High Court, proceedings for compulsory acquisition of the land was initiated and the land was acquired. Question arose as to whether plaintiff was entitled for the amount of compensation received in the land acquisition proceedings or was entitled only to the refund of the earnest money. The High Court in the above case has modified the decree of the specific performance of the contract with decree for a realisation of compensation payable in lieu of acquisition. In paragraph 13 of the judgment the directions of the High Court were extracted which is 10 to the following effect:"13. The High Court issued these consequential directions:"If the decree for specific performance of contract in question is found incapable of being executed due to acquisition of subject land, the decree shall stand suitably substituted by a decree for realisation of compensation payable in lieu thereof as may be or have been determined under the relevant Act and the plaintiff shall have a right to recover such compensation together with solatium and interest due thereon. The plaintiff shall have a right to recover it from the defendant if the defendant has already realised these amounts and in that event the defendant shall be further liable to pay interest at the rate of per cent from the date of realisation by him to the date of payment on the entire amount realised in respect of the disputed land."13. In the above context, this Court proceeded to examine the ambit and scope of Section 21 of the Specific Relief Act. This Court came to the opinion that when the contract has become impossible with no fault of the plaintiff, Section 21 enables the Court to award compensation in lieu of the specific performance.Paragraphs 24, 29 and 30 are extracted below:"24. When the plaintiff by his option has made specific performance impossible, Section 21 does not entitle him to seek damages. That position is common to both Section 2 of Lord Cairns Act, 1858 and Section 21 of the Specific Relief Act, 1963. But in Indian law where the contract, for no fault of the plaintiff, becomes impossible of performance Section 21 enables award of compensation in lieu and substitution of specific performance.29. In the present case there is no difficulty in assessing the quantum of the compensation. That is ascertainable with reference to the determination of the market value in the land acquisition proceedings. The compensation awarded may safely be taken to be the measure of damages subject, of course, to the deduction therefrom of money value of the services, time and energy expended by the appellant in pursuing the claims of compensation and the expenditure incurred by him in the litigation culminating in the award.30. We accordingly confirm the finding of the High Court that respondent was willing and ready to perform the contract and that it was the appellant who was in breach. However, in substitution of the decree for specific performance, we make a decree for compensation, equivalent to the amount of the land acquisition compensation awarded for the suit lands together with solatium and accrued interest, less a sum of Rs 1,50,000 (one lakh fifty thousand only) which, by a rough and ready estimate, we quantify as the amount to be paid to the appellant in respect of his services, time and money expended in pursuing the legal claims for compensation."14. This Court in Kanshi Ram vs. Om Prakash Jawal and others, 1996 (4) SCC 593 , has again in context of suit for specific performance of the contract held that granting decree for specific performance of contract is one of the discretion to be exercised on sound principles. When the court gets into equity jurisdiction, it would be guided by justice, equity, good conscience and fairness to both the parties.15. From materials brought on record, it does appear compensation was determined in favour of defendant No.6 to the extent of amount of Rs.10,03,743/. It also appears that compensation towards shops was also determined. The name of defendant No.6 being recorded in the Revenue records, compensation was determined in its favour. In view of the judgment and decree of courts below whereby the gift deed dated 08.07.1991 has been declared void, defendant No.6 is left with no right in the suit land and is clearly not entitled to receive any amount consequent to the acquisition of the suit land. It has not come on the record as to whether compensation consequent to the acquisition of the suit land has been received by defendant No.6(respondent No.1 to the appeal) or not.16.
### Response:
1
### Explanation:
9. From the facts and material on record, it is undisputed that agreement to sell was executed by defendant Nos.1 t 5 in favour of the plaintiff and entire sale consideration of Rs.90,000/was received and possession was delivered in the year 1989 itself. Plaintiff constructed three shops on the suit land. Plaintiffs case that to defeat the rights of the plaintiff a gift deed dated 08.07.1991 was executed by defendant Nos.1 to 5 in favour of defendant No.6 has been accepted by courts below which have declared the gift deed as null and void. The decree for specific performance was granted by the trial court, it was confirmed by the First Appellate Court. The suit land was acquired and compensation was determined in favour of defendant No.6 whose name was recorded in the Revenue records. No objection can be taken to the view of the High Court that consequent of the acquisition of suit land under the land acquisition proceedings decree of specific performance granted in favour of plaintiff could not have been maintained.From materials brought on record, it does appear compensation was determined in favour of defendant No.6 to the extent of amount of Rs.10,03,743/. It also appears that compensation towards shops was also determined. The name of defendant No.6 being recorded in the Revenue records, compensation was determined in its favour. In view of the judgment and decree of courts below whereby the gift deed dated 08.07.1991 has been declared void, defendant No.6 is left with no right in the suit land and is clearly not entitled to receive any amount consequent to the acquisition of the suit land. It has not come on the record as to whether compensation consequent to the acquisition of the suit land has been received by defendant No.6(respondent No.1 to the appeal) or not.
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Municipal Corporation Of Delhi Vs. Ajanta Iron & Steel Co. (Pvt.) Ltd | Lalit Mohan Sharma, J. 1. This appeal by special leave arises out of a suit filed by the respondent-company against the appellant, Municipal Corporation of Delhi, for a mandatory injunction to restore the supply of electricity discontinued during the pendency of the suit. Initially the suit was filed for a prohibitory injunction from disconnecting the electric connection. The plaint was amended following stoppage of the supply of energy. 2. According to the plaintiffs case, the suit had to be filed as the Delhi Electric Supply Undertaking was threatening disconnection without disclosing any reason. Subsequently, some officers of the Undertaking made an inspection of the meters and alleged theft of electrictty after tampering with the seals affixed on the meters. A First Information Report was lodged with the police. 3. Admittedly no notice was served by the Delhi Electric Supply Undertaking on the plaintiff before severing the electric connection. The learned trial court, however, dismissed the suit and the plaintiff appealed. The First Additional District Judge, Delhi, who heard the appeal decreed the suit on the sole ground of non-service of notice as required under condition No. 36 in regard to supply of electricity by the appellant. The Delhi High Court dismissed the appellants second appeal at the admission stage -by a reasoned judgment. 4. The learned counsel for the appellant has contended that in view of the conduct of the plaintiff in stealing electricity, the Court should in its discretion refuse to issue a direction for restoration of the electric supply. We are afraid, it is not possible to agree with the appellant for more reasons than one. The plaintiff is seriously denying the allegation of theft and it is not possible to assume the accusation as correct without a full-fledged trial on this issue. The case of Jagarnath Singh v. B.S. Ramaswamy, (1966) 1 S.C.R. 885; relied upon on behalf of the appellant is clearly distinguishable inasmush as the consumer in that case was convicted under the Indian Penal Code, and the conviction was being maintained in appeal. Besides, the service of notice is a prerequisite for disconnection, and the appellant can not be allowed to go back upon its words and refuse the consumer the benefit of notice as contemplated by the agreement. The learned counsel for the appellant urged that the Delhi Electric Supply Undertaking will seriously suffer if this view is up held. We do not understand as to what is the difficulty in the way of the appellant to serve a notice on the consumer before discontinuing the supply. It has to be appreciated that the licensee Undertaking is performing a public duty and is governed by a special statute and the law also contemplates service of a notice before disconnection of supply of electricity. The courts below have made it clear that they have not examined the case on merits. The question whether, the allegations of theft are true or not has to be examined and decided in an appropriate proceeding, and the appellant will not, therefore, be prejudiced by the present judgment in its claim. | 0[ds]We are afraid, it is not possible to agree with the appellant for more reasons than one. The plaintiff is seriously denying the allegation of theft and it is not possible to assume the accusation as correct without a full-fledged trial on this issue. The case of Jagarnath Singh v. B.S. Ramaswamy, (1966) 1 S.C.R. 885; relied upon on behalf of the appellant is clearly distinguishable inasmush as the consumer in that case was convicted under the Indian Penal Code, and the conviction was being maintained in appeal. Besides, the service of notice is a prerequisite for disconnection, and the appellant can not be allowed to go back upon its words and refuse the consumer the benefit of notice as contemplated by the agreement.We do not understand as to what is the difficulty in the way of the appellant to serve a notice on the consumer before discontinuing the supply. It has to be appreciated that the licensee Undertaking is performing a public duty and is governed by a special statute and the law also contemplates service of a notice before disconnection of supply of electricity. The courts below have made it clear that they have not examined the case on merits. The question whether, the allegations of theft are true or not has to be examined and decided in an appropriate proceeding, and the appellant will not, therefore, be prejudiced by the present judgment in its claim. | 0 | 562 | 263 | ### 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:
Lalit Mohan Sharma, J. 1. This appeal by special leave arises out of a suit filed by the respondent-company against the appellant, Municipal Corporation of Delhi, for a mandatory injunction to restore the supply of electricity discontinued during the pendency of the suit. Initially the suit was filed for a prohibitory injunction from disconnecting the electric connection. The plaint was amended following stoppage of the supply of energy. 2. According to the plaintiffs case, the suit had to be filed as the Delhi Electric Supply Undertaking was threatening disconnection without disclosing any reason. Subsequently, some officers of the Undertaking made an inspection of the meters and alleged theft of electrictty after tampering with the seals affixed on the meters. A First Information Report was lodged with the police. 3. Admittedly no notice was served by the Delhi Electric Supply Undertaking on the plaintiff before severing the electric connection. The learned trial court, however, dismissed the suit and the plaintiff appealed. The First Additional District Judge, Delhi, who heard the appeal decreed the suit on the sole ground of non-service of notice as required under condition No. 36 in regard to supply of electricity by the appellant. The Delhi High Court dismissed the appellants second appeal at the admission stage -by a reasoned judgment. 4. The learned counsel for the appellant has contended that in view of the conduct of the plaintiff in stealing electricity, the Court should in its discretion refuse to issue a direction for restoration of the electric supply. We are afraid, it is not possible to agree with the appellant for more reasons than one. The plaintiff is seriously denying the allegation of theft and it is not possible to assume the accusation as correct without a full-fledged trial on this issue. The case of Jagarnath Singh v. B.S. Ramaswamy, (1966) 1 S.C.R. 885; relied upon on behalf of the appellant is clearly distinguishable inasmush as the consumer in that case was convicted under the Indian Penal Code, and the conviction was being maintained in appeal. Besides, the service of notice is a prerequisite for disconnection, and the appellant can not be allowed to go back upon its words and refuse the consumer the benefit of notice as contemplated by the agreement. The learned counsel for the appellant urged that the Delhi Electric Supply Undertaking will seriously suffer if this view is up held. We do not understand as to what is the difficulty in the way of the appellant to serve a notice on the consumer before discontinuing the supply. It has to be appreciated that the licensee Undertaking is performing a public duty and is governed by a special statute and the law also contemplates service of a notice before disconnection of supply of electricity. The courts below have made it clear that they have not examined the case on merits. The question whether, the allegations of theft are true or not has to be examined and decided in an appropriate proceeding, and the appellant will not, therefore, be prejudiced by the present judgment in its claim.
### Response:
0
### Explanation:
We are afraid, it is not possible to agree with the appellant for more reasons than one. The plaintiff is seriously denying the allegation of theft and it is not possible to assume the accusation as correct without a full-fledged trial on this issue. The case of Jagarnath Singh v. B.S. Ramaswamy, (1966) 1 S.C.R. 885; relied upon on behalf of the appellant is clearly distinguishable inasmush as the consumer in that case was convicted under the Indian Penal Code, and the conviction was being maintained in appeal. Besides, the service of notice is a prerequisite for disconnection, and the appellant can not be allowed to go back upon its words and refuse the consumer the benefit of notice as contemplated by the agreement.We do not understand as to what is the difficulty in the way of the appellant to serve a notice on the consumer before discontinuing the supply. It has to be appreciated that the licensee Undertaking is performing a public duty and is governed by a special statute and the law also contemplates service of a notice before disconnection of supply of electricity. The courts below have made it clear that they have not examined the case on merits. The question whether, the allegations of theft are true or not has to be examined and decided in an appropriate proceeding, and the appellant will not, therefore, be prejudiced by the present judgment in its claim.
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Union of India (UOI) Vs. Kalpana Industries Ltd | 31, 1980. The High Court has held that tungsten wire imported by the respondent is not covered by Item 73(23) of the Tariff. The High Court was, therefore, quashed the orders holding that tungsten wire was classifiable under the said Item. C.A. Nos. 3386-3401 of 1983 and C.A. Nos. 5940-48 of 1983 and directed against the said judgment of the High Court. 3. C.A. No. 3419 of 1991 is filed by the Revenue against the judgment of the Central Government Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as the Tribunal) dated December 2, 1983 wherein the Tribunal, following the decision of the High Court referred to above, has held that tungsten wire is not classifiable under Item 73(23) and is classifiable under Item 70(1) of the Customs Tariff. Item 73(23) and 70(1) were as under : 73(23): Nichrome and other electrical resistance wires and strips. 70(1) : All non-ferrous alloys and manufactures of metals and alloys not otherwise specified. 4. The High Court has referred to Crofts Serial Electricians Handbook (Eight Edition) wherein electrical resistance wire has been thus explained : Electrical resistance wire is wire that has the characteristic of high resistance to the flow of electric current. It is this higher resistance characteristic which distinguishes resistance wire from conducting wire. The material used for conducting wires should have as low as resistance as possible. Electrical resistance wire is used for the wiring of rheostat , resistors, heaters, furnaces, electric ranges, etc. Metal alloys are used for the manufacture of resistance wires. The more common alloys employed are nickel chromium, nickel copper , nickel chromium iron, and manganese nickel . In table 215 are listed the properties of metals and alloys manufactured by the Driver-Harris Co. for resistance wire. Although the table gives the trade names for the one company, it will be found to be fairly representative for the alloys of the other manufactures. 5. The High Court has pointed out that as per the table referred to in the above paragraph Nichrome has the third highest resistance, the same being 112, whereas the resistance of Tungsten wire is 5.523, the other four below it being to Aluminium 2.670, Gold 2.350, Copper 1.724 and Silver 1.622. The High Court has observed that all electrical wires are either resistance wires or conductor wires depending upon their characteristics of high resistance or otherwise to the flow of electrical current. According to the High Court, the expression electrical resistance wires in Item 73(23) has to be considered keeping in view the word Nichrome which precedes the expression and, therefore, what is intended to be included are electrical resistance wires of the Nichrome type, i.e., base having high resistance. Having regard to the low resistivity of tungsten, the High Court has held that tungsten wire cannot be treated as electrical resistance wire falling in Item 73(23). 6. Shri Gaurishankar Murthy, the learned Counsel appearing for the Revenue, has urged that since tungsten has a resistance of 5.5, as found it, the High Court itself, and tungsten wire is used for the manufacture of filament for incandescent lamps, it must be treated as electrical resistance wire falling into Item 73(23) that the finding recorded by the Customs authorities that tungsten wire was classifiable under Item 73(23) cannot be said to be unreasonable or unjustified and the High Court was in error in interfering with the said finding under Article 226 of the Constitution. 7. We are unable to agree with the said contention and hold that Tungsten wire can be regarded as electrical resistance wire falling in Item 73(23). In our opinion, the High Court has rightly found that the Tungsten wire cannot be regarded as electrical resistance wire for the purpose of Item 73(23). The said conclusion finds support from the certificate dated September 1,1972 (Annexure H to the writ petitions giving rise to Civil Appeal Nos. 5940-48 of 1983) given by the Directorate General of Technical Development wherein it is stated that Tungsten wire which is used for manufacture of filaments is not a resistance wire. There is one more communication dated September 12, 1978 from the Directorate General of Technical Development (Annexure D to the writ petitions giving rise to Civil Appeal Nos. 3386-3401 of 1983) wherein also it is stated : Regarding possibility of using tungsten wire as a resistance wire, it is stated that the resistance wires are generally of Nickel Chromium Alloys or Ferrous based alloys and not of tungsten wires suitable for use in tungsten filaments. We are of the opinion that tungsten wires of the grade and quality used for tungsten filaments cannot be used as a resistance wire. 8. In our opinion, the expression electrical resistance wires in Item 73(23) has to be read along with the Nichrome which precedes that expression and, if thus read, it can only mean electrical wires having characteristics similar to those of, namely, high resistivity. Keeping in view the low resistivity of Tungsten wire it cannot be regarded as electrical resistance wire falling under Item 73(23). We therefore, find no force in these appeals and the same are liable to be dismissed. 9. Shri Murthy has, however, submitted that these cases have arisen out of applications for refund of duty and that the respondent cannot be permitted to claim such refund in view of the change in the law as a result of amendment of Section 27 of the Customs Act, 1962 and insertion of Section 28D in the said Act by Act No. 40 of 1991 and that the respondent cannot claim the refund unless it can show that it has not passed on the duty paid by it to the consumer. The High Court, in the impugned judgment, has not given any direction regarding refund of duty to the respondent. In case the respondent makes a claim for refund on the basis of judgment of the High Court and judgment of the Tribunal the same would have to be considered in accordance with law. | 0[ds]7. We are unable to agree with the said contention and hold that Tungsten wire can be regarded as electrical resistance wire falling in Item 73(23). In our opinion, the High Court has rightly found that the Tungsten wire cannot be regarded as electrical resistance wire for the purpose of Item 73(23). The said conclusion finds support from the certificate dated September 1,1972 (Annexure H to the writ petitions giving rise to Civil Appeal Nos. 5940-48 of 1983) given by the Directorate General of Technical Development wherein it is stated that Tungsten wire which is used for manufacture of filaments is not a resistance wire. There is one more communication dated September 12, 1978 from the Directorate General of Technical Development (Annexure D to the writ petitions giving rise to Civil Appeal Nos. 3386-3401 of 1983) wherein also it is stated :Regarding possibility of using tungsten wire as a resistance wire, it is stated that the resistance wires are generally of Nickel Chromium Alloys or Ferrous based alloys and not of tungsten wires suitable for use in tungsten filaments. We are of the opinion that tungsten wires of the grade and quality used for tungsten filaments cannot be used as a resistance wire.8. In our opinion, the expression electrical resistance wires in Item 73(23) has to be read along with the Nichrome which precedes that expression and, if thus read, it can only mean electrical wires having characteristics similar to those of, namely, high resistivity. Keeping in view the low resistivity of Tungsten wire it cannot be regarded as electrical resistance wire falling under Item 73(23). We therefore, find no force in these appeals and the same are liable to be dismissed.The High Court, in the impugned judgment, has not given any direction regarding refund of duty to the respondent. In case the respondent makes a claim for refund on the basis of judgment of the High Court and judgment of the Tribunal the same would have to be considered in accordance with law. | 0 | 1,369 | 381 | ### 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:
31, 1980. The High Court has held that tungsten wire imported by the respondent is not covered by Item 73(23) of the Tariff. The High Court was, therefore, quashed the orders holding that tungsten wire was classifiable under the said Item. C.A. Nos. 3386-3401 of 1983 and C.A. Nos. 5940-48 of 1983 and directed against the said judgment of the High Court. 3. C.A. No. 3419 of 1991 is filed by the Revenue against the judgment of the Central Government Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as the Tribunal) dated December 2, 1983 wherein the Tribunal, following the decision of the High Court referred to above, has held that tungsten wire is not classifiable under Item 73(23) and is classifiable under Item 70(1) of the Customs Tariff. Item 73(23) and 70(1) were as under : 73(23): Nichrome and other electrical resistance wires and strips. 70(1) : All non-ferrous alloys and manufactures of metals and alloys not otherwise specified. 4. The High Court has referred to Crofts Serial Electricians Handbook (Eight Edition) wherein electrical resistance wire has been thus explained : Electrical resistance wire is wire that has the characteristic of high resistance to the flow of electric current. It is this higher resistance characteristic which distinguishes resistance wire from conducting wire. The material used for conducting wires should have as low as resistance as possible. Electrical resistance wire is used for the wiring of rheostat , resistors, heaters, furnaces, electric ranges, etc. Metal alloys are used for the manufacture of resistance wires. The more common alloys employed are nickel chromium, nickel copper , nickel chromium iron, and manganese nickel . In table 215 are listed the properties of metals and alloys manufactured by the Driver-Harris Co. for resistance wire. Although the table gives the trade names for the one company, it will be found to be fairly representative for the alloys of the other manufactures. 5. The High Court has pointed out that as per the table referred to in the above paragraph Nichrome has the third highest resistance, the same being 112, whereas the resistance of Tungsten wire is 5.523, the other four below it being to Aluminium 2.670, Gold 2.350, Copper 1.724 and Silver 1.622. The High Court has observed that all electrical wires are either resistance wires or conductor wires depending upon their characteristics of high resistance or otherwise to the flow of electrical current. According to the High Court, the expression electrical resistance wires in Item 73(23) has to be considered keeping in view the word Nichrome which precedes the expression and, therefore, what is intended to be included are electrical resistance wires of the Nichrome type, i.e., base having high resistance. Having regard to the low resistivity of tungsten, the High Court has held that tungsten wire cannot be treated as electrical resistance wire falling in Item 73(23). 6. Shri Gaurishankar Murthy, the learned Counsel appearing for the Revenue, has urged that since tungsten has a resistance of 5.5, as found it, the High Court itself, and tungsten wire is used for the manufacture of filament for incandescent lamps, it must be treated as electrical resistance wire falling into Item 73(23) that the finding recorded by the Customs authorities that tungsten wire was classifiable under Item 73(23) cannot be said to be unreasonable or unjustified and the High Court was in error in interfering with the said finding under Article 226 of the Constitution. 7. We are unable to agree with the said contention and hold that Tungsten wire can be regarded as electrical resistance wire falling in Item 73(23). In our opinion, the High Court has rightly found that the Tungsten wire cannot be regarded as electrical resistance wire for the purpose of Item 73(23). The said conclusion finds support from the certificate dated September 1,1972 (Annexure H to the writ petitions giving rise to Civil Appeal Nos. 5940-48 of 1983) given by the Directorate General of Technical Development wherein it is stated that Tungsten wire which is used for manufacture of filaments is not a resistance wire. There is one more communication dated September 12, 1978 from the Directorate General of Technical Development (Annexure D to the writ petitions giving rise to Civil Appeal Nos. 3386-3401 of 1983) wherein also it is stated : Regarding possibility of using tungsten wire as a resistance wire, it is stated that the resistance wires are generally of Nickel Chromium Alloys or Ferrous based alloys and not of tungsten wires suitable for use in tungsten filaments. We are of the opinion that tungsten wires of the grade and quality used for tungsten filaments cannot be used as a resistance wire. 8. In our opinion, the expression electrical resistance wires in Item 73(23) has to be read along with the Nichrome which precedes that expression and, if thus read, it can only mean electrical wires having characteristics similar to those of, namely, high resistivity. Keeping in view the low resistivity of Tungsten wire it cannot be regarded as electrical resistance wire falling under Item 73(23). We therefore, find no force in these appeals and the same are liable to be dismissed. 9. Shri Murthy has, however, submitted that these cases have arisen out of applications for refund of duty and that the respondent cannot be permitted to claim such refund in view of the change in the law as a result of amendment of Section 27 of the Customs Act, 1962 and insertion of Section 28D in the said Act by Act No. 40 of 1991 and that the respondent cannot claim the refund unless it can show that it has not passed on the duty paid by it to the consumer. The High Court, in the impugned judgment, has not given any direction regarding refund of duty to the respondent. In case the respondent makes a claim for refund on the basis of judgment of the High Court and judgment of the Tribunal the same would have to be considered in accordance with law.
### Response:
0
### Explanation:
7. We are unable to agree with the said contention and hold that Tungsten wire can be regarded as electrical resistance wire falling in Item 73(23). In our opinion, the High Court has rightly found that the Tungsten wire cannot be regarded as electrical resistance wire for the purpose of Item 73(23). The said conclusion finds support from the certificate dated September 1,1972 (Annexure H to the writ petitions giving rise to Civil Appeal Nos. 5940-48 of 1983) given by the Directorate General of Technical Development wherein it is stated that Tungsten wire which is used for manufacture of filaments is not a resistance wire. There is one more communication dated September 12, 1978 from the Directorate General of Technical Development (Annexure D to the writ petitions giving rise to Civil Appeal Nos. 3386-3401 of 1983) wherein also it is stated :Regarding possibility of using tungsten wire as a resistance wire, it is stated that the resistance wires are generally of Nickel Chromium Alloys or Ferrous based alloys and not of tungsten wires suitable for use in tungsten filaments. We are of the opinion that tungsten wires of the grade and quality used for tungsten filaments cannot be used as a resistance wire.8. In our opinion, the expression electrical resistance wires in Item 73(23) has to be read along with the Nichrome which precedes that expression and, if thus read, it can only mean electrical wires having characteristics similar to those of, namely, high resistivity. Keeping in view the low resistivity of Tungsten wire it cannot be regarded as electrical resistance wire falling under Item 73(23). We therefore, find no force in these appeals and the same are liable to be dismissed.The High Court, in the impugned judgment, has not given any direction regarding refund of duty to the respondent. In case the respondent makes a claim for refund on the basis of judgment of the High Court and judgment of the Tribunal the same would have to be considered in accordance with law.
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Mani Subba Rao and Another Vs. Ganeshappa | CHANDRACHUD, C.J.1. The appellants filed a proceeding before the Tehsildar against the respondent for recovery of rent and obtained an order in that behalf in 1956. That order was confirmed by the Assistant Commissioner and the Deputy Commissioner. Thereupon, the appellants filed a suit for evicting the respondent under Section 15 read with Section 29 of the Mysore Tenancy Act of 1952. In that suit, an order of eviction was passed by the Tehsildar against the respondent and on August 6, 1958 the appellants obtained actual possession of the suit lands from the respondent in execution of the order passed by the Tehsildar. Respondents appeal against the order of eviction was dismissed by the Assistant Commissioner but in a further appeal, the Deputy Commissioner set aside the order of eviction. The appellants thereupon filed a revision application before the Mysore Revenue Tribunal, a Full Bench of which by a judgment dated February 24, 1960 allowed the revision petition and confirmed the decree of eviction passed by the Tehsildar.2. The respondent thereafter filed a Writ Petition under Article 227 of the Constitution in the Mysore High Court, being C.P. No. 607 of 1960. On October 2, 1962, which was during the pendency of the Writ Petition, the Mysore Land Reforms Act, 10 of 1962, came into force. Section 23(2) of that Act provides, to the extent material, that notwithstanding anything contained in any enactment or provision of law repealed by Section 142 of the Act, any proceeding pending on the appointed day or instituted on or before that day in pursuance of any such repealed enactment or law before any Court, officer or authority for eviction of a tenant on the ground of default of payment of rent, "such court, officer or authority shall not order eviction of the tenant", if the tenant pays to the landlord the arrears of rent together with costs of the proceedings as decided by such court, officer or authority within such period as it may fix. In view of this provision and following the judgment of this Court in C.A. 618 of 1962, dated March 1, 1965 (Ambanna Sahu Shinde (dead) by his legal representative Smt. Akkubai v. Appaji Krishnaji Kulkarni) the High Court by its judgment dated December 14, 1970 allowed the Writ Petition and remanded the matter to the Tehsildar for taking appropriate action under Section 23(2). This appeal by special leave is directed against the order of remanded passed by the High Court.3. Mr. Chitale who appears on behalf of the appellants has raised an interesting question arising out of the interpretation of Sections 22 and 23 of the Mysore Act of 1962. He contends that the benefit conferred on the tenant by Section 23(2) is available only to such tenants as have committed only two consecutive defaults and not more; and since in the instant case, the respondent had committed four defaults. Section 23(2) is not attracted and the respondent cannot claim the benefit of that provision. Were this contention raised before the High Court, it would have been possible for the High Court to examine its validity which would have obviated a remand. The order of remand passed by the High Court if founded on the assumption, which was not challenged, that on its language and true interpretation. Section 23(2) was clearly attracted and that all the High Court had to do was to remand the matter to the Tehsildar for quantification of the rent as contemplated by the section. Not only was the contention now raised by Mr. Chitale not raised before the High Court, but we find that the contention does not find any place either in the Special Leave Petition or in the statement of case filed on behalf of the appellant. In these circumstances we do not see any justification for permitting the learned counsel to raise the point.4. Following the judgment in C.A. 618 of 1965, to which we have already referred, we confirm the judgment of the High Court and dismiss the appeal with costs. | 0[ds]since in the instant case, the respondent had committed four defaults. Section 23(2) is not attracted and the respondent cannot claim the benefit of that provision.Were this contention raised before the High Court, it would have been possible for the High Court to examine its validity which would have obviated a remand. The order of remand passed by the High Court if founded on the assumption, which was not challenged, that on its language and true interpretation. Section 23(2) was clearly attracted and that all the High Court had to do was to remand the matter to the Tehsildar for quantification of the rent as contemplated by the section. Not only was the contention now raised by Mr. Chitale not raised before the High Court, but we find that the contention does not find any place either in the Special Leave Petition or in the statement of case filed on behalf of the appellant. In these circumstances we do not see any justification for permitting the learned counsel to raise the point. | 0 | 751 | 194 | ### 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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CHANDRACHUD, C.J.1. The appellants filed a proceeding before the Tehsildar against the respondent for recovery of rent and obtained an order in that behalf in 1956. That order was confirmed by the Assistant Commissioner and the Deputy Commissioner. Thereupon, the appellants filed a suit for evicting the respondent under Section 15 read with Section 29 of the Mysore Tenancy Act of 1952. In that suit, an order of eviction was passed by the Tehsildar against the respondent and on August 6, 1958 the appellants obtained actual possession of the suit lands from the respondent in execution of the order passed by the Tehsildar. Respondents appeal against the order of eviction was dismissed by the Assistant Commissioner but in a further appeal, the Deputy Commissioner set aside the order of eviction. The appellants thereupon filed a revision application before the Mysore Revenue Tribunal, a Full Bench of which by a judgment dated February 24, 1960 allowed the revision petition and confirmed the decree of eviction passed by the Tehsildar.2. The respondent thereafter filed a Writ Petition under Article 227 of the Constitution in the Mysore High Court, being C.P. No. 607 of 1960. On October 2, 1962, which was during the pendency of the Writ Petition, the Mysore Land Reforms Act, 10 of 1962, came into force. Section 23(2) of that Act provides, to the extent material, that notwithstanding anything contained in any enactment or provision of law repealed by Section 142 of the Act, any proceeding pending on the appointed day or instituted on or before that day in pursuance of any such repealed enactment or law before any Court, officer or authority for eviction of a tenant on the ground of default of payment of rent, "such court, officer or authority shall not order eviction of the tenant", if the tenant pays to the landlord the arrears of rent together with costs of the proceedings as decided by such court, officer or authority within such period as it may fix. In view of this provision and following the judgment of this Court in C.A. 618 of 1962, dated March 1, 1965 (Ambanna Sahu Shinde (dead) by his legal representative Smt. Akkubai v. Appaji Krishnaji Kulkarni) the High Court by its judgment dated December 14, 1970 allowed the Writ Petition and remanded the matter to the Tehsildar for taking appropriate action under Section 23(2). This appeal by special leave is directed against the order of remanded passed by the High Court.3. Mr. Chitale who appears on behalf of the appellants has raised an interesting question arising out of the interpretation of Sections 22 and 23 of the Mysore Act of 1962. He contends that the benefit conferred on the tenant by Section 23(2) is available only to such tenants as have committed only two consecutive defaults and not more; and since in the instant case, the respondent had committed four defaults. Section 23(2) is not attracted and the respondent cannot claim the benefit of that provision. Were this contention raised before the High Court, it would have been possible for the High Court to examine its validity which would have obviated a remand. The order of remand passed by the High Court if founded on the assumption, which was not challenged, that on its language and true interpretation. Section 23(2) was clearly attracted and that all the High Court had to do was to remand the matter to the Tehsildar for quantification of the rent as contemplated by the section. Not only was the contention now raised by Mr. Chitale not raised before the High Court, but we find that the contention does not find any place either in the Special Leave Petition or in the statement of case filed on behalf of the appellant. In these circumstances we do not see any justification for permitting the learned counsel to raise the point.4. Following the judgment in C.A. 618 of 1965, to which we have already referred, we confirm the judgment of the High Court and dismiss the appeal with costs.
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since in the instant case, the respondent had committed four defaults. Section 23(2) is not attracted and the respondent cannot claim the benefit of that provision.Were this contention raised before the High Court, it would have been possible for the High Court to examine its validity which would have obviated a remand. The order of remand passed by the High Court if founded on the assumption, which was not challenged, that on its language and true interpretation. Section 23(2) was clearly attracted and that all the High Court had to do was to remand the matter to the Tehsildar for quantification of the rent as contemplated by the section. Not only was the contention now raised by Mr. Chitale not raised before the High Court, but we find that the contention does not find any place either in the Special Leave Petition or in the statement of case filed on behalf of the appellant. In these circumstances we do not see any justification for permitting the learned counsel to raise the point.
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Nalangora Inasu Pylyth Vs. S.T. Varee and Others | JAGANMOHAN REDDY, J.1. This appeal is against an order appointing receiver in the following circumstances. A suit had been filed by the respondents as members of the church of the east in India in their representative capacity for an injunction that the election which was to have been held on December 9, 1962 should not be held. An application for interim injunction however, was rejected and the election was held on December 9, 1962. In or about 1963 the respondents amended the plaint with an additional prayer for a declaration that the elections held on December 9, 1962 were invalid. They also impleaded defendants Nos. 15, 16 and 19. It may be mentioned here that according to the constitution of the Church four Central Trustees are elected and of the four one had died before he took charge and that is why only three persons namely defendants Nos. 15, 16 and 19, who were the Central Trustees were made parties. On February 12, 1964 the appellant made an application for appointment of a receiver and for directions to the receiver to take charge of the properties of the Church. This application was granted on February 19, 1965 and the Court appointed two advocates receivers. Against appointment of the receiver the appellant filed an appeal to the Subordinate Judge of Trichur. The Subordinate Judge vacated the order appointing the receiver. The respondent went in revision to the High Court. The High Court reversed the order of the appellate Court and confirmed that of the trial Court with the result that the direction to appoint the two receivers and to take charge of the properties was restored. As against that order this appeal has been filed.2. It is alleged that according to the constitution of the Church elections have to be held every three years and accordingly new trustees were elected in 1966. The validity of this election, however, is not admitted by the respondents. Be that as it may, a petition was filed by the appellants in the trial Court that since nothing has been alleged against the new trustees the order appointing the receivers should be set aside and the properties of the Church handed over to the new trustees. The trial Court dismissed that petition, as against which a revision petition was filed in the High Court. In that revision petition the High Court was of the view that there was no error of jurisdiction. Accordingly while dismissing it, it further directed that :The dismissal of the revision petition will not in any way affect the rights of the newly elected trustees to move an application in the trial Court for getting possession of the properties from the receiver.This order was passed on December 13, 1967 against which no appeal has been filed in this Court. In view of this order the trial Court while dismissing the suit of the respondents passed the following order :The receivers appointed in this case who took charge at the fag end of the trial will continue as there is already a direction from the High Court that the new trustees con seek for possession form the receivers by satisfying the Court that they are validly elected trustees.It appears to us that this direction by the trial Court was made pursuant of the directions of the High Court dated December 13, 1967 to which we have referred earlier. An appeal against the dismissal of the suit was filed before the Subordinate Judge of Trichur who allowed the appeal. The order in that appeal is in the following terms :In the result, the appeal is allowed the judgment and decree of the lower court so far as it is against the defendants is hereby set aside and the suit is dismissed in toto. In the circumstances of this case, the parties are directed to bear their costs throughout. In view of the direction of the High Court referred to in the lower court judgment, the receivers will continue.3. The reference to the directions of the High Court referred to in this order is the order made by the trial Court in conformity with order of the High Court dated December 13, 1967. Thereafter the respondents filed a second appeal against the dismissal of their suit in the High Court which we are informed is pending in that court.4. Now it is clear to us from the above proceedings that when once the suit is dismissed by the Sub-Judge the order appointing the receivers will automatically get discharged. But in this case because of the order of the High Court dated December 13, 1967 whether that was properly understood by the trial Court directed the retention of the receivers which direction was maintained by the first appellant Court while allowing the appeal and dismissing the suit. Whatever proceedings have to be taken in respect of the retention or removal of the receivers will have to be taken elsewhere. In so far as this appeal is concerned it has become infructuous because the suit itself in which the receivers were appointed is dismissed and there is no separate order passed by the High Court in the second appeal which is pending before that Court to continue the receivers. | 0[ds]3. The reference to the directions of the High Court referred to in this order is the order made by the trial Court in conformity with order of the High Court dated December 13, 1967. Thereafter the respondents filed a second appeal against the dismissal of their suit in the High Court which we are informed is pending in that court.4. Now it is clear to us from the above proceedings that when once the suit is dismissed by thethe order appointing the receivers will automatically get discharged. But in this case because of the order of the High Court dated December 13, 1967 whether that was properly understood by the trial Court directed the retention of the receivers which direction was maintained by the first appellant Court while allowing the appeal and dismissing the suit. Whatever proceedings have to be taken in respect of the retention or removal of the receivers will have to be taken elsewhere. In so far as this appeal is concerned it has become infructuous because the suit itself in which the receivers were appointed is dismissed and there is no separate order passed by the High Court in the second appeal which is pending before that Court to continue the receivers. | 0 | 930 | 220 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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JAGANMOHAN REDDY, J.1. This appeal is against an order appointing receiver in the following circumstances. A suit had been filed by the respondents as members of the church of the east in India in their representative capacity for an injunction that the election which was to have been held on December 9, 1962 should not be held. An application for interim injunction however, was rejected and the election was held on December 9, 1962. In or about 1963 the respondents amended the plaint with an additional prayer for a declaration that the elections held on December 9, 1962 were invalid. They also impleaded defendants Nos. 15, 16 and 19. It may be mentioned here that according to the constitution of the Church four Central Trustees are elected and of the four one had died before he took charge and that is why only three persons namely defendants Nos. 15, 16 and 19, who were the Central Trustees were made parties. On February 12, 1964 the appellant made an application for appointment of a receiver and for directions to the receiver to take charge of the properties of the Church. This application was granted on February 19, 1965 and the Court appointed two advocates receivers. Against appointment of the receiver the appellant filed an appeal to the Subordinate Judge of Trichur. The Subordinate Judge vacated the order appointing the receiver. The respondent went in revision to the High Court. The High Court reversed the order of the appellate Court and confirmed that of the trial Court with the result that the direction to appoint the two receivers and to take charge of the properties was restored. As against that order this appeal has been filed.2. It is alleged that according to the constitution of the Church elections have to be held every three years and accordingly new trustees were elected in 1966. The validity of this election, however, is not admitted by the respondents. Be that as it may, a petition was filed by the appellants in the trial Court that since nothing has been alleged against the new trustees the order appointing the receivers should be set aside and the properties of the Church handed over to the new trustees. The trial Court dismissed that petition, as against which a revision petition was filed in the High Court. In that revision petition the High Court was of the view that there was no error of jurisdiction. Accordingly while dismissing it, it further directed that :The dismissal of the revision petition will not in any way affect the rights of the newly elected trustees to move an application in the trial Court for getting possession of the properties from the receiver.This order was passed on December 13, 1967 against which no appeal has been filed in this Court. In view of this order the trial Court while dismissing the suit of the respondents passed the following order :The receivers appointed in this case who took charge at the fag end of the trial will continue as there is already a direction from the High Court that the new trustees con seek for possession form the receivers by satisfying the Court that they are validly elected trustees.It appears to us that this direction by the trial Court was made pursuant of the directions of the High Court dated December 13, 1967 to which we have referred earlier. An appeal against the dismissal of the suit was filed before the Subordinate Judge of Trichur who allowed the appeal. The order in that appeal is in the following terms :In the result, the appeal is allowed the judgment and decree of the lower court so far as it is against the defendants is hereby set aside and the suit is dismissed in toto. In the circumstances of this case, the parties are directed to bear their costs throughout. In view of the direction of the High Court referred to in the lower court judgment, the receivers will continue.3. The reference to the directions of the High Court referred to in this order is the order made by the trial Court in conformity with order of the High Court dated December 13, 1967. Thereafter the respondents filed a second appeal against the dismissal of their suit in the High Court which we are informed is pending in that court.4. Now it is clear to us from the above proceedings that when once the suit is dismissed by the Sub-Judge the order appointing the receivers will automatically get discharged. But in this case because of the order of the High Court dated December 13, 1967 whether that was properly understood by the trial Court directed the retention of the receivers which direction was maintained by the first appellant Court while allowing the appeal and dismissing the suit. Whatever proceedings have to be taken in respect of the retention or removal of the receivers will have to be taken elsewhere. In so far as this appeal is concerned it has become infructuous because the suit itself in which the receivers were appointed is dismissed and there is no separate order passed by the High Court in the second appeal which is pending before that Court to continue the receivers.
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3. The reference to the directions of the High Court referred to in this order is the order made by the trial Court in conformity with order of the High Court dated December 13, 1967. Thereafter the respondents filed a second appeal against the dismissal of their suit in the High Court which we are informed is pending in that court.4. Now it is clear to us from the above proceedings that when once the suit is dismissed by thethe order appointing the receivers will automatically get discharged. But in this case because of the order of the High Court dated December 13, 1967 whether that was properly understood by the trial Court directed the retention of the receivers which direction was maintained by the first appellant Court while allowing the appeal and dismissing the suit. Whatever proceedings have to be taken in respect of the retention or removal of the receivers will have to be taken elsewhere. In so far as this appeal is concerned it has become infructuous because the suit itself in which the receivers were appointed is dismissed and there is no separate order passed by the High Court in the second appeal which is pending before that Court to continue the receivers.
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Dresser Rand S.A Vs. M/S. Bindal Agro Chem Ltd. | contended that the words the purchase order in Clause (C) should be read as this purchase order. For this purpose, he referred to several provisions of the General Conditions of Purchase, some of which use the words the purchase order whereas other use the words this purchase order. He contended that the words the and this are loosely used in the General Conditions of Purchase and in the Letters of Intent and are, therefore, interchangeable. We cannot agree. Firstly, it is not open to us to change the terms of any document. Secondly, the use of the words this purchase order in some clauses of the General Conditions of Purchase was not inappropriate. It should be remembered that the General Conditions of Purchase, in entirety, were intended to be treated as a part to the purchase order as and when the purchase order was placed. Therefore, when the General Conditions of Purchase were read as part of the purchase order, use of the words this purchase order in the General Conditions of Purchase would be appropriate. Therefore, it is impermissible to read the words the purchase order in clause (C) of Letters of Intent as this purchase order. 40. Thus, neither the General Conditions of Purchase forming part of Invitation of Bid nor Revision No.4 dated 10.6.1991, nor the Letters of Intent dated 12.6.1991 contain any arbitration agreement. There is also no other document or correspondence which can be read as containing a provision that can be interpreted as an agreement to resolve disputes by arbitration. We are, therefore, of the view, though for slightly different reasons, that the decision of the learned Single Judge and the Division Bench of the High Court holding that there is no arbitration agreement, does not suffer from any infirmity. Re: Point No. (iii) : 41. DR contends that the conduct of BINDAL and KGK clearly showed that they proceeded on the basis that there was an arbitration agreement. DR referred to the notices dated 9.1.1993, 29.1.1993 and 4.2.1993 issued by its Counsel culminating in the final notice dated 5.2.1993 seeking reference to arbitration. It is pointed out that neither BINDAL nor KGK issued any reply to the said notice dated 5.2.1993 thereby indicating an implied acceptance of an arbitration agreement. DR also points out that when notice was sent by ICC to BINDAL and KGK in respect of the request for arbitration lodged by DR, Mr. Bhattacharyya, Advocate, sent a reply dated 11.4.1993 acting on behalf of both BINDAL and KGK, stating that they are in the process of jointly nominating an arbitrator. It is contended that if there was really no arbitration agreement, the counsel for BINDAL and KGK would not have stated that they were in the process of nominating an arbitrator. It is contended that only by way of an afterthought, BINDAL and KGK changed their stand to contend that there was no arbitration agreement, when their changed the counsel and sent a further reply dated 27.4.1993 and 28.4.1993 respectively. It is submitted that there is acquiescence on the part of BINDAL and KGK in regard to arbitration. 42. This is countered by BINDAL and KGK by pointing out that Mr. Bhattacharyya had stated that an Arbitrator will be appointed by BINDAL and KGK without examining or knowing the full facts, while sending the letter dated 11.4.1993. They point out that immediately thereafter, by issuing notices dated 27.4.1993 and 28.4.1993, they made it clear that there was no arbitration agreement. It is contended that even if Mr. Bhattacharyya had stated that an arbitrator was being appointed, that would not come in the way of either BINDAL or KGK subsequently pointing out that there was no arbitration agreement, when they examined the legal position or when an application under section 3 of Foreign Awards Act was filed. 43. In U.P. Rajkiya Nirman Nigam Ltd. vs. Indure Pvt. Ltd. [1996 (2) SCC 667] negativing a contention based on acquiescence in matters concerning challenge to arbitrability, this Court observed thus :- Acquiescence does not confer jurisdiction........................ The clear settled law thus is that the existence or validity of an arbitration agreement shall be decided by the Court alone. Arbitrators, therefore, have no power or jurisdiction to decide or adjudicate conclusively by themselves the question since it is the very foundation on which the arbitrators proceed to adjudicate the disputes. Therefore, it is rightly pointed out by Shri Adarsh Kumar Goel, learned counsel for the appellant that they had by mistake agreed for reference and that arbitrators could not decide the existence of the arbitration agreement or arbitrability of the disputes without prejudice to their stand that no valid agreement existed. Shri Nariman contended that having agreed to refer the dispute, the appellant had acquiesced to the jurisdiction of the arbitrators and, therefore, they cannot exercise the right under Section 33 of the Act. We find no force in the contention. As seen, the appellant is claiming adjudication under Section 33 which the Court alone has jurisdiction and power to decide whether any valid agreement is existing between the parties. Mere acceptance or acquiescing to the jurisdiction of the arbitrators for adjudication of the disputes as to the existence of the arbitration agreement or arbitrability of the dispute does not disentitle the appellant to have the remedy under Section 33 through the Court. In our considered view the remedy under Section 33 is the only right royal way for deciding the controversy. [Emphasis supplied] What is stated above with reference to section 33 of Arbitration Act, 1940, will apply with equal force in regard to section 3 of Foreign Awards Act. Therefore, the fact that at some point of time, BINDAL or KGK had stated that they would appoint an Arbitrator will not come in the way of their demonstrating that there is no arbitration agreement when the matter comes up before the court under section 3 of the Foreign Awards Act. Therefore, there is no question of either waiver or acquiescence. Conclusion 44. | 0[ds]What is stated above with reference to section 33 of Arbitration Act, 1940, will apply with equal force in regard to section 3 of Foreign Awards Act. Therefore, the fact that at some point of time, BINDAL or KGK had stated that they would appoint an Arbitrator will not come in the way of their demonstrating that there is no arbitration agreement when the matter comes up before the court under section 3 of the Foreign Awards Act. Therefore, there is no question of either waiver or acquiescence. | 0 | 11,220 | 100 | ### 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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contended that the words the purchase order in Clause (C) should be read as this purchase order. For this purpose, he referred to several provisions of the General Conditions of Purchase, some of which use the words the purchase order whereas other use the words this purchase order. He contended that the words the and this are loosely used in the General Conditions of Purchase and in the Letters of Intent and are, therefore, interchangeable. We cannot agree. Firstly, it is not open to us to change the terms of any document. Secondly, the use of the words this purchase order in some clauses of the General Conditions of Purchase was not inappropriate. It should be remembered that the General Conditions of Purchase, in entirety, were intended to be treated as a part to the purchase order as and when the purchase order was placed. Therefore, when the General Conditions of Purchase were read as part of the purchase order, use of the words this purchase order in the General Conditions of Purchase would be appropriate. Therefore, it is impermissible to read the words the purchase order in clause (C) of Letters of Intent as this purchase order. 40. Thus, neither the General Conditions of Purchase forming part of Invitation of Bid nor Revision No.4 dated 10.6.1991, nor the Letters of Intent dated 12.6.1991 contain any arbitration agreement. There is also no other document or correspondence which can be read as containing a provision that can be interpreted as an agreement to resolve disputes by arbitration. We are, therefore, of the view, though for slightly different reasons, that the decision of the learned Single Judge and the Division Bench of the High Court holding that there is no arbitration agreement, does not suffer from any infirmity. Re: Point No. (iii) : 41. DR contends that the conduct of BINDAL and KGK clearly showed that they proceeded on the basis that there was an arbitration agreement. DR referred to the notices dated 9.1.1993, 29.1.1993 and 4.2.1993 issued by its Counsel culminating in the final notice dated 5.2.1993 seeking reference to arbitration. It is pointed out that neither BINDAL nor KGK issued any reply to the said notice dated 5.2.1993 thereby indicating an implied acceptance of an arbitration agreement. DR also points out that when notice was sent by ICC to BINDAL and KGK in respect of the request for arbitration lodged by DR, Mr. Bhattacharyya, Advocate, sent a reply dated 11.4.1993 acting on behalf of both BINDAL and KGK, stating that they are in the process of jointly nominating an arbitrator. It is contended that if there was really no arbitration agreement, the counsel for BINDAL and KGK would not have stated that they were in the process of nominating an arbitrator. It is contended that only by way of an afterthought, BINDAL and KGK changed their stand to contend that there was no arbitration agreement, when their changed the counsel and sent a further reply dated 27.4.1993 and 28.4.1993 respectively. It is submitted that there is acquiescence on the part of BINDAL and KGK in regard to arbitration. 42. This is countered by BINDAL and KGK by pointing out that Mr. Bhattacharyya had stated that an Arbitrator will be appointed by BINDAL and KGK without examining or knowing the full facts, while sending the letter dated 11.4.1993. They point out that immediately thereafter, by issuing notices dated 27.4.1993 and 28.4.1993, they made it clear that there was no arbitration agreement. It is contended that even if Mr. Bhattacharyya had stated that an arbitrator was being appointed, that would not come in the way of either BINDAL or KGK subsequently pointing out that there was no arbitration agreement, when they examined the legal position or when an application under section 3 of Foreign Awards Act was filed. 43. In U.P. Rajkiya Nirman Nigam Ltd. vs. Indure Pvt. Ltd. [1996 (2) SCC 667] negativing a contention based on acquiescence in matters concerning challenge to arbitrability, this Court observed thus :- Acquiescence does not confer jurisdiction........................ The clear settled law thus is that the existence or validity of an arbitration agreement shall be decided by the Court alone. Arbitrators, therefore, have no power or jurisdiction to decide or adjudicate conclusively by themselves the question since it is the very foundation on which the arbitrators proceed to adjudicate the disputes. Therefore, it is rightly pointed out by Shri Adarsh Kumar Goel, learned counsel for the appellant that they had by mistake agreed for reference and that arbitrators could not decide the existence of the arbitration agreement or arbitrability of the disputes without prejudice to their stand that no valid agreement existed. Shri Nariman contended that having agreed to refer the dispute, the appellant had acquiesced to the jurisdiction of the arbitrators and, therefore, they cannot exercise the right under Section 33 of the Act. We find no force in the contention. As seen, the appellant is claiming adjudication under Section 33 which the Court alone has jurisdiction and power to decide whether any valid agreement is existing between the parties. Mere acceptance or acquiescing to the jurisdiction of the arbitrators for adjudication of the disputes as to the existence of the arbitration agreement or arbitrability of the dispute does not disentitle the appellant to have the remedy under Section 33 through the Court. In our considered view the remedy under Section 33 is the only right royal way for deciding the controversy. [Emphasis supplied] What is stated above with reference to section 33 of Arbitration Act, 1940, will apply with equal force in regard to section 3 of Foreign Awards Act. Therefore, the fact that at some point of time, BINDAL or KGK had stated that they would appoint an Arbitrator will not come in the way of their demonstrating that there is no arbitration agreement when the matter comes up before the court under section 3 of the Foreign Awards Act. Therefore, there is no question of either waiver or acquiescence. Conclusion 44.
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What is stated above with reference to section 33 of Arbitration Act, 1940, will apply with equal force in regard to section 3 of Foreign Awards Act. Therefore, the fact that at some point of time, BINDAL or KGK had stated that they would appoint an Arbitrator will not come in the way of their demonstrating that there is no arbitration agreement when the matter comes up before the court under section 3 of the Foreign Awards Act. Therefore, there is no question of either waiver or acquiescence.
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Jagir Singh and Others Etc Vs. State of Bihar and Another Etc | service vehicles and the owner becomes liable to pay tax on the fares payable by passengers to the owners.18. The operational arrangement to which the petitioners refer that they have let out the vehicle on hire has no relevance to the liability to taxation. The goods are transported by a vehicle. The passengers are carried by the vehicles. The person who allows his vehicle to be used for the purpose is the permit holder, and, therefore, the liability to pay tax attaches to the permit holder as the owner of the vehicle.19. The plea that no machinery has been provided enabling the owner to collect or recover the tax from the owner of the goods is unacceptable. Once it is found that the legislature levies tax on passengers and goods carried by public service motor vehicle it becomes responsibility of the owner of the vehicle not to permit the vehicle to be used until the tax is paid. If the permit holder lets out the vehicle to any person on hire it is a matter of internal arrangement between the owner who is the permit holder and the person who is allowed by the permit holder to hire the vehicle to collect tax in order to enable the owner to discharge the liability. If the owner does not make adequate provision in that behalf the owner cannot escape liability by pleading that the hirer of the vehicle is liable to pay tax and the owner is not liable. The intention of these Acts is made clear if reference is made to other similar Acts. The Mysore Act speaks of "operator" meaning any person whose name is entered in the permit as the holder thereof. The Mysore Act speaks of tax being levied and collected on goods carried by stage carriages and further provides that if the operator collects from the passengers fares and freights inclusive of the tax the operator shall pay to the State Government on account of the tax one eleventh of the total amount of fares and freights, inclusive of tax collected by him from the passengers.The definition of " agent" in Rule 2 of the Bihar Public Carrier Rules, 1971 is not applicable to the Bihar Act under which tax is levied on passengers and goods. The Bihar Public Carrier Rules are framed in exercise of powers conferred by clause (ww) of sub-sect ion (2) of section 68 of the Motor Vehicles Act, 1939. Section 68 of the Motor Vehicles Act, 1939 confers power on the State Government to make Rules inter alia, for (ww) licensing of agents engaged in the business of collecting or forwarding and distributing of goods carried by public carriers. These agents under the Bihar Public Carrier. Rules, 1971 are licensed agents to be engaged as forwarding agents, collecting agents. These agents have no liability to pay tax levied under section 3 of the Bihar Act on passengers and goods carried by public service vehicles. These agents collect the goods, forward the goods, distribute the goods. Whatever freight they collect for goods they have to collect the tax also on such freight. They furnish the operators with correct figures of the freight receivable by them. These agents can charge only such commission as will be prescribed by the State Government under the Rules. These agents are separate from owner of the vehicle as will appear from Rule 9 of the Bihar Public Carrier Rules which speaks of particulars to be mentioned in contract of agency. One of the matters mentioned there is the name of the owner, driver, registration number of vehicle and its authorised load and the rate and amount of the commission. These agents are confined to the special work of collecting, forwarding, distributing of goods carried by public service vehicles.20. The Bihar Act prescribes Rules made under the Bihar Act. The Bihar Act and Rules thereunder define agent to mean a person authorised in writing by owner to appear on his behalf before a prescribed authority. An agent under the Bihar Act is only one authorised by the owner to appear before a prescribed authority for different purposes mentioned in the Rules. The Bihar Act and the Rules do not recognise any agency in the matter of tax on fares and freights payable to the owner of the public service vehicle. The agents under public Carrier Rules are licensed to do the special task of collecting, forwarding and distributing goods carried by public carriers. They charge fees for such service and they have special responsibility and liability under terms of agency. These agents are not owners of public service vehicles. The fact that these licensed agents have to furnish the operators with correct figures of freight receivable by them shows not only that they are accountable to the owners or operators but also that licensed agents are not the owners or operators.The Motor Vehicles Act, 1939 in sections 54, 55 and 56 deal with applications for public carriers permit, procedure in considering application for public carriers permit and grant of public carriers permit. Section 59 of the Motor Vehicles Act, 1939 states that save as provided in section 61, a permit shall not be transferable from one person to another except with the permission of the transport authority which granted the permit and shall not without such permission operate to confer on any person to whom a vehicle covered by the permit is transferred any right to use that vehicle in the manner authorised by the permit. Section 61 speaks of transfer of permit on the death of the holder. Therefore, these provisions in the Motor Vehicles Act, 1939 indicate that a permit cannot be transferred.21. The permit holder is the owner within the definition of the "owner" in the Bihar Act and other Acts and is also the "operator" within the meaning of the word "operator" in other Acts to which reference has been made. The liability to pay tax is of the permit holder in all cases.22. | 0[ds]These provisions indicate that the tax is payable by the owner, returns are to be furnished by the owner, the assessment is of the owner, the liability to pay is of the owner and if the owner fails to pay the money persons who are liable to pay money or owe money to the owner can be directed to pay to the Government.The definition of "owner" repels the interpretation submitted by the petitioners that the definition means not only the owner who is the permit holder but also a booking agency who may be in charge of the vehicle without being a permit holder. The entire accent in the definition of owner is on the holder of a permit in respect of the public service motor vehicle. It is the permit which entitles the holder to ply the vehicle. It is because the vehicle is being plied that the passengers and consignors of goods carried by that vehicle become liable to pay not only fare and freight to the owner but also tax thereon to the owner. The words "or any person for the time being in charge of such vehicle or responsible for the management of the place of business of such owner" indicate that the permit holder will include any person who is in charge of such vehicle of the permit holder or any person who is responsible for the management of the place of business of such owner. The owner cannot escape the liability by stating that any person is for the time being in charge of such vehicles, and, therefore, such person is the owner and not the permitperson who allows his vehicle to be used for the purpose is the permit holder, and, therefore, the liability to pay tax attaches to the permit holder as the owner of theplea that no machinery has been provided enabling the owner to collect or recover the tax from the owner of the goods is unacceptable. Once it is found that the legislature levies tax on passengers and goods carried by public service motor vehicle it becomes responsibility of the owner of the vehicle not to permit the vehicle to be used until the tax is paid. If the permit holder lets out the vehicle to any person on hire it is a matter of internal arrangement between the owner who is the permit holder and the person who is allowed by the permit holder to hire the vehicle to collect tax in order to enable the owner to discharge the liability. If the owner does not make adequate provision in that behalf the owner cannot escape liability by pleading that the hirer of the vehicle is liable to pay tax and the owner is not liable. The intention of these Acts is made clear if reference is made to other similar Acts. The Mysore Act speaks of "operator" meaning any person whose name is entered in the permit as the holder thereof. The Mysore Act speaks of tax being levied and collected on goods carried by stage carriages and further provides that if the operator collects from the passengers fares and freights inclusive of the tax the operator shall pay to the State Government on account of the tax one eleventh of the total amount of fares and freights, inclusive of tax collected by him from theBihar Act prescribes Rules made under the Bihar Act. The Bihar Act and Rules thereunder define agent to mean a person authorised in writing by owner to appear on his behalf before a prescribed authority. An agent under the Bihar Act is only one authorised by the owner to appear before a prescribed authority for different purposes mentioned in the Rules. The Bihar Act and the Rules do not recognise any agency in the matter of tax on fares and freights payable to the owner of the public service vehicle. The agents under public Carrier Rules are licensed to do the special task of collecting, forwarding and distributing goods carried by public carriers. They charge fees for such service and they have special responsibility and liability under terms of agency. These agents are not owners of public service vehicles. The fact that these licensed agents have to furnish the operators with correct figures of freight receivable by them shows not only that they are accountable to the owners or operators but also that licensed agents are not the owners or operators.The Motor Vehicles Act, 1939 in sections 54, 55 and 56 deal with applications for public carriers permit, procedure in considering application for public carriers permit and grant of public carriers permit. Section 59 ofthe Motor Vehicles Act, 1939 states that save as provided in section 61, a permit shall not be transferable from one person to another except with the permission of the transport authority which granted the permit and shall not without such permission operate to confer on any person to whom a vehicle covered by the permit is transferred any right to use that vehicle in the manner authorised by the permit. Section 61 speaks of transfer of permit on the death of the holder. Therefore, these provisions inthe Motor Vehicles Act, 1939 indicate that a permit cannot bepermit holder is the owner within the definition of the "owner" in the Bihar Act and other Acts and is also the "operator" within the meaning of the word "operator" in other Acts to which reference has been made. The liability to pay tax is of the permit holder in all cases. | 0 | 3,832 | 981 | ### 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:
service vehicles and the owner becomes liable to pay tax on the fares payable by passengers to the owners.18. The operational arrangement to which the petitioners refer that they have let out the vehicle on hire has no relevance to the liability to taxation. The goods are transported by a vehicle. The passengers are carried by the vehicles. The person who allows his vehicle to be used for the purpose is the permit holder, and, therefore, the liability to pay tax attaches to the permit holder as the owner of the vehicle.19. The plea that no machinery has been provided enabling the owner to collect or recover the tax from the owner of the goods is unacceptable. Once it is found that the legislature levies tax on passengers and goods carried by public service motor vehicle it becomes responsibility of the owner of the vehicle not to permit the vehicle to be used until the tax is paid. If the permit holder lets out the vehicle to any person on hire it is a matter of internal arrangement between the owner who is the permit holder and the person who is allowed by the permit holder to hire the vehicle to collect tax in order to enable the owner to discharge the liability. If the owner does not make adequate provision in that behalf the owner cannot escape liability by pleading that the hirer of the vehicle is liable to pay tax and the owner is not liable. The intention of these Acts is made clear if reference is made to other similar Acts. The Mysore Act speaks of "operator" meaning any person whose name is entered in the permit as the holder thereof. The Mysore Act speaks of tax being levied and collected on goods carried by stage carriages and further provides that if the operator collects from the passengers fares and freights inclusive of the tax the operator shall pay to the State Government on account of the tax one eleventh of the total amount of fares and freights, inclusive of tax collected by him from the passengers.The definition of " agent" in Rule 2 of the Bihar Public Carrier Rules, 1971 is not applicable to the Bihar Act under which tax is levied on passengers and goods. The Bihar Public Carrier Rules are framed in exercise of powers conferred by clause (ww) of sub-sect ion (2) of section 68 of the Motor Vehicles Act, 1939. Section 68 of the Motor Vehicles Act, 1939 confers power on the State Government to make Rules inter alia, for (ww) licensing of agents engaged in the business of collecting or forwarding and distributing of goods carried by public carriers. These agents under the Bihar Public Carrier. Rules, 1971 are licensed agents to be engaged as forwarding agents, collecting agents. These agents have no liability to pay tax levied under section 3 of the Bihar Act on passengers and goods carried by public service vehicles. These agents collect the goods, forward the goods, distribute the goods. Whatever freight they collect for goods they have to collect the tax also on such freight. They furnish the operators with correct figures of the freight receivable by them. These agents can charge only such commission as will be prescribed by the State Government under the Rules. These agents are separate from owner of the vehicle as will appear from Rule 9 of the Bihar Public Carrier Rules which speaks of particulars to be mentioned in contract of agency. One of the matters mentioned there is the name of the owner, driver, registration number of vehicle and its authorised load and the rate and amount of the commission. These agents are confined to the special work of collecting, forwarding, distributing of goods carried by public service vehicles.20. The Bihar Act prescribes Rules made under the Bihar Act. The Bihar Act and Rules thereunder define agent to mean a person authorised in writing by owner to appear on his behalf before a prescribed authority. An agent under the Bihar Act is only one authorised by the owner to appear before a prescribed authority for different purposes mentioned in the Rules. The Bihar Act and the Rules do not recognise any agency in the matter of tax on fares and freights payable to the owner of the public service vehicle. The agents under public Carrier Rules are licensed to do the special task of collecting, forwarding and distributing goods carried by public carriers. They charge fees for such service and they have special responsibility and liability under terms of agency. These agents are not owners of public service vehicles. The fact that these licensed agents have to furnish the operators with correct figures of freight receivable by them shows not only that they are accountable to the owners or operators but also that licensed agents are not the owners or operators.The Motor Vehicles Act, 1939 in sections 54, 55 and 56 deal with applications for public carriers permit, procedure in considering application for public carriers permit and grant of public carriers permit. Section 59 of the Motor Vehicles Act, 1939 states that save as provided in section 61, a permit shall not be transferable from one person to another except with the permission of the transport authority which granted the permit and shall not without such permission operate to confer on any person to whom a vehicle covered by the permit is transferred any right to use that vehicle in the manner authorised by the permit. Section 61 speaks of transfer of permit on the death of the holder. Therefore, these provisions in the Motor Vehicles Act, 1939 indicate that a permit cannot be transferred.21. The permit holder is the owner within the definition of the "owner" in the Bihar Act and other Acts and is also the "operator" within the meaning of the word "operator" in other Acts to which reference has been made. The liability to pay tax is of the permit holder in all cases.22.
### Response:
0
### Explanation:
These provisions indicate that the tax is payable by the owner, returns are to be furnished by the owner, the assessment is of the owner, the liability to pay is of the owner and if the owner fails to pay the money persons who are liable to pay money or owe money to the owner can be directed to pay to the Government.The definition of "owner" repels the interpretation submitted by the petitioners that the definition means not only the owner who is the permit holder but also a booking agency who may be in charge of the vehicle without being a permit holder. The entire accent in the definition of owner is on the holder of a permit in respect of the public service motor vehicle. It is the permit which entitles the holder to ply the vehicle. It is because the vehicle is being plied that the passengers and consignors of goods carried by that vehicle become liable to pay not only fare and freight to the owner but also tax thereon to the owner. The words "or any person for the time being in charge of such vehicle or responsible for the management of the place of business of such owner" indicate that the permit holder will include any person who is in charge of such vehicle of the permit holder or any person who is responsible for the management of the place of business of such owner. The owner cannot escape the liability by stating that any person is for the time being in charge of such vehicles, and, therefore, such person is the owner and not the permitperson who allows his vehicle to be used for the purpose is the permit holder, and, therefore, the liability to pay tax attaches to the permit holder as the owner of theplea that no machinery has been provided enabling the owner to collect or recover the tax from the owner of the goods is unacceptable. Once it is found that the legislature levies tax on passengers and goods carried by public service motor vehicle it becomes responsibility of the owner of the vehicle not to permit the vehicle to be used until the tax is paid. If the permit holder lets out the vehicle to any person on hire it is a matter of internal arrangement between the owner who is the permit holder and the person who is allowed by the permit holder to hire the vehicle to collect tax in order to enable the owner to discharge the liability. If the owner does not make adequate provision in that behalf the owner cannot escape liability by pleading that the hirer of the vehicle is liable to pay tax and the owner is not liable. The intention of these Acts is made clear if reference is made to other similar Acts. The Mysore Act speaks of "operator" meaning any person whose name is entered in the permit as the holder thereof. The Mysore Act speaks of tax being levied and collected on goods carried by stage carriages and further provides that if the operator collects from the passengers fares and freights inclusive of the tax the operator shall pay to the State Government on account of the tax one eleventh of the total amount of fares and freights, inclusive of tax collected by him from theBihar Act prescribes Rules made under the Bihar Act. The Bihar Act and Rules thereunder define agent to mean a person authorised in writing by owner to appear on his behalf before a prescribed authority. An agent under the Bihar Act is only one authorised by the owner to appear before a prescribed authority for different purposes mentioned in the Rules. The Bihar Act and the Rules do not recognise any agency in the matter of tax on fares and freights payable to the owner of the public service vehicle. The agents under public Carrier Rules are licensed to do the special task of collecting, forwarding and distributing goods carried by public carriers. They charge fees for such service and they have special responsibility and liability under terms of agency. These agents are not owners of public service vehicles. The fact that these licensed agents have to furnish the operators with correct figures of freight receivable by them shows not only that they are accountable to the owners or operators but also that licensed agents are not the owners or operators.The Motor Vehicles Act, 1939 in sections 54, 55 and 56 deal with applications for public carriers permit, procedure in considering application for public carriers permit and grant of public carriers permit. Section 59 ofthe Motor Vehicles Act, 1939 states that save as provided in section 61, a permit shall not be transferable from one person to another except with the permission of the transport authority which granted the permit and shall not without such permission operate to confer on any person to whom a vehicle covered by the permit is transferred any right to use that vehicle in the manner authorised by the permit. Section 61 speaks of transfer of permit on the death of the holder. Therefore, these provisions inthe Motor Vehicles Act, 1939 indicate that a permit cannot bepermit holder is the owner within the definition of the "owner" in the Bihar Act and other Acts and is also the "operator" within the meaning of the word "operator" in other Acts to which reference has been made. The liability to pay tax is of the permit holder in all cases.
|
Mohd Rashid Ahmad Etc Vs. State Of U.P. & Anr | categories of officers and servants either provisionally absorbed under s.577(e) or temporarily appointed under s.577(ee), irrespective of their salary. The Government policy was made quite clear in that circular, which we have quoted earlier. 35. At this stage, the functions of the Divisional Committees were to be purely recommendatory in nature. The Committees had to make their selection of officers and servants suitable for absorption after an interview of all such officers and servants, and forward their recommendations to the Government, for finalising action in the matter of final absorption under s.112A. The subsequent circular dated January 31, 1967, making a categorisation of the officers and servants concerned, into two groups, reserving the power of selection for final absorption to the State Selection Committee in case of all Centralised Services whose starting salary was Rs. 500/- and more, and entrusting the function to the Divisional Committees in case of those whose starting salary was less than Rs.500/-, was still subject to the Government policy already laid down. It is, therefore, not right to suggest that the State Government was absolved of the "duty to hear" the officers and servants of the erstwhile Municipal Boards and other local authorities drawing Rs. 500/- and aboveAll the officers and servants of the erstwhile Municipal Boards and other local authorities provisionally absorbed under s.577(e) or temporarily appointed under s.577 (ee) were therefore, entitled to be heard in the matter of their final absorption under s.112A read with r.6(2) (iii), irrespective of the ir salary. The requirements of a fair hearing are fulfilled in the case of officers and servants of the erstwhile Municipal Boards and other local authorities drawing a salary of less than Rs. 500/- but not in the case of those drawing Rs. 5 00/- or more. 36. It is accepted before us that the appellant Ashfaq Hussain was called for an interview by the Divisional Committee. The State Government in its return has placed material showing that he had a uniformly bad record an d there were adverse entries in his character rolls for several years. It is not disputed that Ashfaq Hussain had been called for an interview by the Divisional Committee. We are not impressed by the submission that the adverse remarks were not put to him when he appeared before the Divisional Committee. It is clear from the two circulars of the State Government dated January 11, 1967 and February 23, 1967 that in all cases in which the services of an officer or servant were to be determined on the ground of his unsuitability, they were to be given an opportunity of personal interview by the Committee. The whole purpose of the personal interview was that when it was proposed to declare such an official unsuitable for absorption, the Committee had to afford an opportunity to appear before it and clear up his position. It is reasonable to presume that when the appellant, Ashfaq Hussain, was called for that purpose, the adverse remarks in his character rolls must have been put to him. On an overall view of the record of service of Ashfaq Hussain, the Divisional Committee was not wrong in recommending to the Government to terminate his services, and the Government was within its rights in passing the impugned order of termination in regard to him.In the case of the appellant Mohd. Rashid Ahmad, it however appears from the return filed by the State Government that no such opportunity was afforded to him before the State Government passed the impugned order dated July 18, 1967 terminating his services. It is evident, no doubt, from the return filed by the State Government that the service record of the appellant was before the Government, on the basis whereof it was decided that he was unsuitable for being finally absorbed and also that the Secretary for Local Self-Government in his note of July 10, 1967 recommended that he was not suitable for final absorption in the Centralised Service s, but it is clear that the Minister for Local Self-Government before passing the impugned order of termination dated July 11, 1967 did not give to the appellant an opportunity of a hearing. The order of termination of his services passed by the State Government, therefore, suffers from a serious legal infirmity. 37. It was said, however, on behalf of the State Government that under s.107(1) of the Adhiniyam no appointment to a post carrying an initial salary of not less than Rs. 500/- per mensem, could be made except after consultation with the Public Service Commission, and that the Commission did not find the appellant fit for appointment as Executive Engineer, Municipal Corporation, Kanpur. It was also pointed out that under s. 108 the appellant could not hold the post beyond the period of one year. It was, therefore, urged that the State Government was justified in terminating the services of the appellant as he could not be finally absorbed in the post of an Executive Engineer in the Centralised Services. It was said that the post had to be advertised for filling up the vacancy as required under s. 107 of the Adhiniyam. We are afraid, the contention cannot be accepted.Under s. 112A (1) of the Adhiniyam, the State Government having by U.P. Palika (Centralised) Services Rules, 1966, constituted the Centralised Palika Services, the appellant Mohd. Rashid Ahmad, who was performing the duties and functions of the post of Executive Engineer under s. 577(ee), was entitled to be considered, if found suitable, for absorption under s.112A(2). Admittedly, the appellant was not heard in the matter of his final absorption. It is also not in dispute that the procedure laid down in the U.P. Palika (Centralised) Services Rules, 1966, was not followed. If the appellant was at all found fit for absorption, it was for the State Government next to decide the suitable post on which he could be absorbed. The method of recruitment provided by r. 20 had to be followed. Evidently, this has not been done. 38.. | 1[ds]Even if the first amendment of March 30, 1967 was ineffective because it was brought into force from April 1, 1967, the second amendment of June 26, 1967, which introduced a new clause (iii) to r.6(2) with retrospective effect from July 9, 1966, was fully effective. It shifted the date for passing of the order of final absorption from March 31, 1967 to August 31 , 1967. Till the expiry of the date now fixed, i.e. August 31, 1967, the legal fiction contained in cl. (iv) of r.6(2) would not be brought into play. That is the inevitable legal consequence of the subsequent amendment made on June 26, 1967It would be clear that cl. (iii) of r. 6(2), as amended on October 10, 1966, gave power to the State Government to pass an order of absorption under s. 112A of the Adhiniyam, of an officer or servant of the Municipal Corporations provision ally absorbed under s. 577(e) if found suitable, on or before March 31, 1967. If there was a failure on the part of the State Government to pass such an order in respect of a particular officer or servant by that date, it would, unless there was a provision to the contrary, bring into play the legal fiction contained therein, and he would, by its force, be deemed to be finally absorbed in the post held by himThis was, not doubt, an ad interim arrangement until the State Government by rules framed under s.112A(1) provided for the creation of the Centralised Palika Services, common to all the Municipal Corporations and Municipal Boards, and made final absorption of officers and servants serving on the posts included in such Centralised Services under s.112A (2). In the very nature of things, the officers and servants provisionally absorbed under s.577(e) or temporarily appointed under s.577(ee) could not be automatically absorbed in the newly created Centralised Services. There had to be a screening of all such officers and servants with a view to determine their suitability or otherwise for final absorption in Centralised Services. It was particularly necessary to weed out the dead-wood to bring about an overall improvement in the municipal administration in these cities.The very nature of the functions entrusted to the State Government under r.6(2) (iii) of the U.P. Palika (Centralised) Services Rules, 1966 for purposes of final absorption under s.112A o f the Adhiniyam, implies a duty to act in a quasi-judicial manner. It cannot be denied that an officer or servant provisionally absorbed under s.577(e) or temporarily appointed under s.577(ee) had the right to be considered for purposes of final absorption. Such officers or servants, particularly those in permanent employment who had put in 20 to 25 years of service in the erstwhile Municipal Boards or Development Boards were vitally affected in the matter of final absorptionWe are unable to agree with this line of reasoning. The first circular dated January 11, 1967 was all pervasive, and it covered all categories of officers and servants either provisionally absorbed under s.577(e) or temporarily appointed under s.577(ee), irrespective of their salary. The Government policy was made quite clear in that circular, which we have quoted earlierAt this stage, the functions of the Divisional Committees were to be purely recommendatory in nature. The Committees had to make their selection of officers and servants suitable for absorption after an interview of all such officers and servants, and forward their recommendations to the Government, for finalising action in the matter of final absorption under s.112A. The subsequent circular dated January 31, 1967, making a categorisation of the officers and servants concerned, into two groups, reserving the power of selection for final absorption to the State Selection Committee in case of all Centralised Services whose starting salary was Rs. 500/- and more, and entrusting the function to the Divisional Committees in case of those whose starting salary was less than Rs.500/-, was still subject to the Government policy already laid down. It is, therefore, not right to suggest that the State Government was absolved of the "duty to hear" the officers and servants of the erstwhile Municipal Boards and other local authorities drawing Rs. 500/- and aboveAll the officers and servants of the erstwhile Municipal Boards and other local authorities provisionally absorbed under s.577(e) or temporarily appointed under s.577 (ee) were therefore, entitled to be heard in the matter of their final absorption under s.112A read with r.6(2) (iii), irrespective of the ir salaryThe requirements of a fair hearing are fulfilled in the case of officers and servants of the erstwhile Municipal Boards and other local authorities drawing a salary of less than Rs. 500/- but not in the case of those drawing Rs. 5 00/- or moreIt is accepted before us that the appellant Ashfaq Hussain was called for an interview by the Divisional Committee. The State Government in its return has placed material showing that he had a uniformly bad record an d there were adverse entries in his character rolls for several years. It is not disputed that Ashfaq Hussain had been called for an interview by the Divisional Committee. We are not impressed by the submission that the adverse remarks were not put to him when he appeared before the Divisional Committee. It is clear from the two circulars of the State Government dated January 11, 1967 and February 23, 1967 that in all cases in which the services of an officer or servant were to be determined on the ground of his unsuitability, they were to be given an opportunity of personal interview by the Committee. The whole purpose of the personal interview was that when it was proposed to declare such an official unsuitable for absorption, the Committee had to afford an opportunity to appear before it and clear up his position. It is reasonable to presume that when the appellant, Ashfaq Hussain, was called for that purpose, the adverse remarks in his character rolls must have been put to him. On an overall view of the record of service of Ashfaq Hussain, the Divisional Committee was not wrong in recommending to the Government to terminate his services, and the Government was within its rights in passing the impugned order of termination in regard to him.In the case of the appellant Mohd. Rashid Ahmad, it however appears from the return filed by the State Government that no such opportunity was afforded to him before the State Government passed the impugned order dated July 18, 1967 terminating his services. It is evident, no doubt, from the return filed by the State Government that the service record of the appellant was before the Government, on the basis whereof it was decided that he was unsuitable for being finally absorbed and also that the Secretary for Local Self-Government in his note of July 10, 1967 recommended that he was not suitable for final absorption in the Centralised Service s, but it is clear that the Minister for Local Self-Government before passing the impugned order of termination dated July 11, 1967 did not give to the appellant an opportunity of a hearing. The order of termination of his services passed by the State Government, therefore, suffers from a serious legal infirmityIt was said, however, on behalf of the State Government that under s.107(1) of the Adhiniyam no appointment to a post carrying an initial salary of not less than Rs. 500/- per mensem, could be made except after consultation with the Public Service Commission, and that the Commission did not find the appellant fit for appointment as Executive Engineer, Municipal Corporation, Kanpur. It was also pointed out that under s. 108 the appellant could not hold the post beyond the period of one year. It was, therefore, urged that the State Government was justified in terminating the services of the appellant as he could not be finally absorbed in the post of an Executive Engineer in the Centralised Services. It was said that the post had to be advertised for filling up the vacancy as required under s. 107 of the Adhiniyam. We are afraid, the contention cannot be accepted.Under s. 112A (1) of the Adhiniyam, the State Government having by U.P. Palika (Centralised) Services Rules, 1966, constituted the Centralised Palika Services, the appellant Mohd. Rashid Ahmad, who was performing the duties and functions of the post of Executive Engineer under s. 577(ee), was entitled to be considered, if found suitable, for absorption under s.112A(2). Admittedly, the appellant was not heard in the matter of his final absorption. It is also not in dispute that the procedure laid down in the U.P. Palika (Centralised) Services Rules, 1966, was not followed. If the appellant was at all found fit for absorption, it was for the State Government next to decide the suitable post on which he could be absorbed. The method of recruitment provided by r. 20 had to be followed. Evidently, this has not been doneThe two appellants and several other employees of the erstwhile Municipal Boards and District Boards challenged the validity of the various orders passed by the State Government terminating their services before the Allahabad High Court on several grounds. Amongst others, they challenged the validity of r.6(2) (iii), framed under s. 112A of the Adhiniyam, on the ground that it was ultra vires the State Government as it brings about extinction of the relationship of employer and employees between them and the erstwhile MunicipalBoards.It was also urged that the impugned orders were violative of Articles 14 and 16 of the Constitution because the classification made by the State Government by its circular dated January 31, 1967 entrusting the task of determination of the suitability or otherwise of officers and servants holding Centralised Services posts drawing less than Rs. 500/to Divisional Committees, which were enjoined to give them the right of a personal hearing to have their say in the matter of final absorption, and entrusting of such function in respect of officers and servants drawing Rs. 500/and above to the State Selection Committee without a corresponding right of hearing, was without any rational basis . It was also urged that the impugned orders were vitiated being in breach of the rules of natural justice. A Division Bench of the Allahabad High Court, however, rejected all these contentions.In view of the language of Entry 5, List II of the Seventh Schedule, the objection regarding the validity of r.6(2) (iii) was rightly not pressed before us. On the view that we take of the various circulars issued by the State Government laying down the procedure for dealing with the question of suitability or otherwise of officers and servants of the erstwhile Municipal Boards for absorption in the Centralised Services under r.6(2)(iii) the contention based on Articles 14 and 16 of the Constitution also does not arise. | 1 | 7,372 | 2,045 | ### 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:
categories of officers and servants either provisionally absorbed under s.577(e) or temporarily appointed under s.577(ee), irrespective of their salary. The Government policy was made quite clear in that circular, which we have quoted earlier. 35. At this stage, the functions of the Divisional Committees were to be purely recommendatory in nature. The Committees had to make their selection of officers and servants suitable for absorption after an interview of all such officers and servants, and forward their recommendations to the Government, for finalising action in the matter of final absorption under s.112A. The subsequent circular dated January 31, 1967, making a categorisation of the officers and servants concerned, into two groups, reserving the power of selection for final absorption to the State Selection Committee in case of all Centralised Services whose starting salary was Rs. 500/- and more, and entrusting the function to the Divisional Committees in case of those whose starting salary was less than Rs.500/-, was still subject to the Government policy already laid down. It is, therefore, not right to suggest that the State Government was absolved of the "duty to hear" the officers and servants of the erstwhile Municipal Boards and other local authorities drawing Rs. 500/- and aboveAll the officers and servants of the erstwhile Municipal Boards and other local authorities provisionally absorbed under s.577(e) or temporarily appointed under s.577 (ee) were therefore, entitled to be heard in the matter of their final absorption under s.112A read with r.6(2) (iii), irrespective of the ir salary. The requirements of a fair hearing are fulfilled in the case of officers and servants of the erstwhile Municipal Boards and other local authorities drawing a salary of less than Rs. 500/- but not in the case of those drawing Rs. 5 00/- or more. 36. It is accepted before us that the appellant Ashfaq Hussain was called for an interview by the Divisional Committee. The State Government in its return has placed material showing that he had a uniformly bad record an d there were adverse entries in his character rolls for several years. It is not disputed that Ashfaq Hussain had been called for an interview by the Divisional Committee. We are not impressed by the submission that the adverse remarks were not put to him when he appeared before the Divisional Committee. It is clear from the two circulars of the State Government dated January 11, 1967 and February 23, 1967 that in all cases in which the services of an officer or servant were to be determined on the ground of his unsuitability, they were to be given an opportunity of personal interview by the Committee. The whole purpose of the personal interview was that when it was proposed to declare such an official unsuitable for absorption, the Committee had to afford an opportunity to appear before it and clear up his position. It is reasonable to presume that when the appellant, Ashfaq Hussain, was called for that purpose, the adverse remarks in his character rolls must have been put to him. On an overall view of the record of service of Ashfaq Hussain, the Divisional Committee was not wrong in recommending to the Government to terminate his services, and the Government was within its rights in passing the impugned order of termination in regard to him.In the case of the appellant Mohd. Rashid Ahmad, it however appears from the return filed by the State Government that no such opportunity was afforded to him before the State Government passed the impugned order dated July 18, 1967 terminating his services. It is evident, no doubt, from the return filed by the State Government that the service record of the appellant was before the Government, on the basis whereof it was decided that he was unsuitable for being finally absorbed and also that the Secretary for Local Self-Government in his note of July 10, 1967 recommended that he was not suitable for final absorption in the Centralised Service s, but it is clear that the Minister for Local Self-Government before passing the impugned order of termination dated July 11, 1967 did not give to the appellant an opportunity of a hearing. The order of termination of his services passed by the State Government, therefore, suffers from a serious legal infirmity. 37. It was said, however, on behalf of the State Government that under s.107(1) of the Adhiniyam no appointment to a post carrying an initial salary of not less than Rs. 500/- per mensem, could be made except after consultation with the Public Service Commission, and that the Commission did not find the appellant fit for appointment as Executive Engineer, Municipal Corporation, Kanpur. It was also pointed out that under s. 108 the appellant could not hold the post beyond the period of one year. It was, therefore, urged that the State Government was justified in terminating the services of the appellant as he could not be finally absorbed in the post of an Executive Engineer in the Centralised Services. It was said that the post had to be advertised for filling up the vacancy as required under s. 107 of the Adhiniyam. We are afraid, the contention cannot be accepted.Under s. 112A (1) of the Adhiniyam, the State Government having by U.P. Palika (Centralised) Services Rules, 1966, constituted the Centralised Palika Services, the appellant Mohd. Rashid Ahmad, who was performing the duties and functions of the post of Executive Engineer under s. 577(ee), was entitled to be considered, if found suitable, for absorption under s.112A(2). Admittedly, the appellant was not heard in the matter of his final absorption. It is also not in dispute that the procedure laid down in the U.P. Palika (Centralised) Services Rules, 1966, was not followed. If the appellant was at all found fit for absorption, it was for the State Government next to decide the suitable post on which he could be absorbed. The method of recruitment provided by r. 20 had to be followed. Evidently, this has not been done. 38..
### Response:
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### Explanation:
an interview by the Divisional Committee. The State Government in its return has placed material showing that he had a uniformly bad record an d there were adverse entries in his character rolls for several years. It is not disputed that Ashfaq Hussain had been called for an interview by the Divisional Committee. We are not impressed by the submission that the adverse remarks were not put to him when he appeared before the Divisional Committee. It is clear from the two circulars of the State Government dated January 11, 1967 and February 23, 1967 that in all cases in which the services of an officer or servant were to be determined on the ground of his unsuitability, they were to be given an opportunity of personal interview by the Committee. The whole purpose of the personal interview was that when it was proposed to declare such an official unsuitable for absorption, the Committee had to afford an opportunity to appear before it and clear up his position. It is reasonable to presume that when the appellant, Ashfaq Hussain, was called for that purpose, the adverse remarks in his character rolls must have been put to him. On an overall view of the record of service of Ashfaq Hussain, the Divisional Committee was not wrong in recommending to the Government to terminate his services, and the Government was within its rights in passing the impugned order of termination in regard to him.In the case of the appellant Mohd. Rashid Ahmad, it however appears from the return filed by the State Government that no such opportunity was afforded to him before the State Government passed the impugned order dated July 18, 1967 terminating his services. It is evident, no doubt, from the return filed by the State Government that the service record of the appellant was before the Government, on the basis whereof it was decided that he was unsuitable for being finally absorbed and also that the Secretary for Local Self-Government in his note of July 10, 1967 recommended that he was not suitable for final absorption in the Centralised Service s, but it is clear that the Minister for Local Self-Government before passing the impugned order of termination dated July 11, 1967 did not give to the appellant an opportunity of a hearing. The order of termination of his services passed by the State Government, therefore, suffers from a serious legal infirmityIt was said, however, on behalf of the State Government that under s.107(1) of the Adhiniyam no appointment to a post carrying an initial salary of not less than Rs. 500/- per mensem, could be made except after consultation with the Public Service Commission, and that the Commission did not find the appellant fit for appointment as Executive Engineer, Municipal Corporation, Kanpur. It was also pointed out that under s. 108 the appellant could not hold the post beyond the period of one year. It was, therefore, urged that the State Government was justified in terminating the services of the appellant as he could not be finally absorbed in the post of an Executive Engineer in the Centralised Services. It was said that the post had to be advertised for filling up the vacancy as required under s. 107 of the Adhiniyam. We are afraid, the contention cannot be accepted.Under s. 112A (1) of the Adhiniyam, the State Government having by U.P. Palika (Centralised) Services Rules, 1966, constituted the Centralised Palika Services, the appellant Mohd. Rashid Ahmad, who was performing the duties and functions of the post of Executive Engineer under s. 577(ee), was entitled to be considered, if found suitable, for absorption under s.112A(2). Admittedly, the appellant was not heard in the matter of his final absorption. It is also not in dispute that the procedure laid down in the U.P. Palika (Centralised) Services Rules, 1966, was not followed. If the appellant was at all found fit for absorption, it was for the State Government next to decide the suitable post on which he could be absorbed. The method of recruitment provided by r. 20 had to be followed. Evidently, this has not been doneThe two appellants and several other employees of the erstwhile Municipal Boards and District Boards challenged the validity of the various orders passed by the State Government terminating their services before the Allahabad High Court on several grounds. Amongst others, they challenged the validity of r.6(2) (iii), framed under s. 112A of the Adhiniyam, on the ground that it was ultra vires the State Government as it brings about extinction of the relationship of employer and employees between them and the erstwhile MunicipalBoards.It was also urged that the impugned orders were violative of Articles 14 and 16 of the Constitution because the classification made by the State Government by its circular dated January 31, 1967 entrusting the task of determination of the suitability or otherwise of officers and servants holding Centralised Services posts drawing less than Rs. 500/to Divisional Committees, which were enjoined to give them the right of a personal hearing to have their say in the matter of final absorption, and entrusting of such function in respect of officers and servants drawing Rs. 500/and above to the State Selection Committee without a corresponding right of hearing, was without any rational basis . It was also urged that the impugned orders were vitiated being in breach of the rules of natural justice. A Division Bench of the Allahabad High Court, however, rejected all these contentions.In view of the language of Entry 5, List II of the Seventh Schedule, the objection regarding the validity of r.6(2) (iii) was rightly not pressed before us. On the view that we take of the various circulars issued by the State Government laying down the procedure for dealing with the question of suitability or otherwise of officers and servants of the erstwhile Municipal Boards for absorption in the Centralised Services under r.6(2)(iii) the contention based on Articles 14 and 16 of the Constitution also does not arise.
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Chandreshwar Bhuthnath Devasthan Vs. Baboy Matiram Varenkar | 1. Heard learned counsel for the parties.2. The appeal has been preferred against the judgment and order passed by the High Court of Bombay at Goa, Panaji, Goa in Second Appeal No. 100 of 2005. The plaintiffs filed a suit against Devasthan for issuance of permanent injunction from disturbing his possession and other co-owners in respect to the suit property comprised in survey no. 160/0 of Mulem Village of Salcete Taluka.3. The plaintiff came with the case that he was co-owner of the suit property along with family members. Property was known as "Sainolem" which was predominantly paddy land in hilly tract. Devasthan had illegally created obstruction. The defendant filed its written statement and set up its own ownership. The suit was decreed by the trial court. The first appeal preferred by Devasthan had been dismissed by the first appellate court. Second appeal also met the same fate. Hence the appeal.4. The defendant in support of the title had filed certain documents in Portuguese language in trial court which had been exhibited as Exhibit E. The English translation of the said document was submitted before the First appellate court. The first appellate court in para 43 of its judgment observed that there was no application filed under the provisions of Order 41, Rule 27 of the Code of Civil Procedure, 1908 (in short the CPC)for producing the additional translation of the original document. As such translation could not be taken on record prayer had been disallowed for taking english version on record. High Court had also approved the aforesaid view and dismissed the second appeal on the ground that the prayer should have been made under Order 41, Rule 27 of the CPC to take the translated document on record. In the absence of the application the document could not have been taken on record.5. We have heard learned counsel for the parties at length. We are of the considered opinion that when the document had been tendered in evidence in Portuguese language, at the time it was not objected. Its translated version into English language could have been filed before the court any time, there was no requirement to file an application for production of the additional evidence under the provisions of Order 41, Rule 27 of the CPC which deals with the production of additional evidence in the appellate court. The document in question in Portuguese language had already been marked as Exhibit E Before the trial court thus it was not a case of additional evidence being adduced. Only translated version of the document was filed. Original was already on record, thus provisions contained under Order 41, Rule 27 of the CPC was not attracted at all. The first appellate court as well as the High Court had committed grave error in law in not considering the document for not filing an application to take additional evidence on record. The translated version of the already filed document could not be said to be constituting additional evidence as the original document was already on record of the trial court. It was thus in order to facilitate the just decision of the matter and to enable the court to read the document its translated version had been filed which ought to have been taken on record without any demur by the court below. Interest of justice required it to be taken on record being document recording title. | 1[ds]5. We have heard learned counsel for the parties at length. We are of the considered opinion that when the document had been tendered in evidence in Portuguese language, at the time it was not objected. Its translated version into English language could have been filed before the court any time, there was no requirement to file an application for production of the additional evidence under the provisions of Order 41, Rule 27 of the CPC which deals with the production of additional evidence in the appellate court. The document in question in Portuguese language had already been marked as Exhibit E Before the trial court thus it was not a case of additional evidence being adduced. Only translated version of the document was filed. Original was already on record, thus provisions contained under Order 41, Rule 27 of the CPC was not attracted at all. The first appellate court as well as the High Court had committed grave error in law in not considering the document for not filing an application to take additional evidence on record. The translated version of the already filed document could not be said to be constituting additional evidence as the original document was already on record of the trial court. It was thus in order to facilitate the just decision of the matter and to enable the court to read the document its translated version had been filed which ought to have been taken on record without any demur by the court below. Interest of justice required it to be taken on record being document recording title. | 1 | 612 | 284 | ### 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:
1. Heard learned counsel for the parties.2. The appeal has been preferred against the judgment and order passed by the High Court of Bombay at Goa, Panaji, Goa in Second Appeal No. 100 of 2005. The plaintiffs filed a suit against Devasthan for issuance of permanent injunction from disturbing his possession and other co-owners in respect to the suit property comprised in survey no. 160/0 of Mulem Village of Salcete Taluka.3. The plaintiff came with the case that he was co-owner of the suit property along with family members. Property was known as "Sainolem" which was predominantly paddy land in hilly tract. Devasthan had illegally created obstruction. The defendant filed its written statement and set up its own ownership. The suit was decreed by the trial court. The first appeal preferred by Devasthan had been dismissed by the first appellate court. Second appeal also met the same fate. Hence the appeal.4. The defendant in support of the title had filed certain documents in Portuguese language in trial court which had been exhibited as Exhibit E. The English translation of the said document was submitted before the First appellate court. The first appellate court in para 43 of its judgment observed that there was no application filed under the provisions of Order 41, Rule 27 of the Code of Civil Procedure, 1908 (in short the CPC)for producing the additional translation of the original document. As such translation could not be taken on record prayer had been disallowed for taking english version on record. High Court had also approved the aforesaid view and dismissed the second appeal on the ground that the prayer should have been made under Order 41, Rule 27 of the CPC to take the translated document on record. In the absence of the application the document could not have been taken on record.5. We have heard learned counsel for the parties at length. We are of the considered opinion that when the document had been tendered in evidence in Portuguese language, at the time it was not objected. Its translated version into English language could have been filed before the court any time, there was no requirement to file an application for production of the additional evidence under the provisions of Order 41, Rule 27 of the CPC which deals with the production of additional evidence in the appellate court. The document in question in Portuguese language had already been marked as Exhibit E Before the trial court thus it was not a case of additional evidence being adduced. Only translated version of the document was filed. Original was already on record, thus provisions contained under Order 41, Rule 27 of the CPC was not attracted at all. The first appellate court as well as the High Court had committed grave error in law in not considering the document for not filing an application to take additional evidence on record. The translated version of the already filed document could not be said to be constituting additional evidence as the original document was already on record of the trial court. It was thus in order to facilitate the just decision of the matter and to enable the court to read the document its translated version had been filed which ought to have been taken on record without any demur by the court below. Interest of justice required it to be taken on record being document recording title.
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5. We have heard learned counsel for the parties at length. We are of the considered opinion that when the document had been tendered in evidence in Portuguese language, at the time it was not objected. Its translated version into English language could have been filed before the court any time, there was no requirement to file an application for production of the additional evidence under the provisions of Order 41, Rule 27 of the CPC which deals with the production of additional evidence in the appellate court. The document in question in Portuguese language had already been marked as Exhibit E Before the trial court thus it was not a case of additional evidence being adduced. Only translated version of the document was filed. Original was already on record, thus provisions contained under Order 41, Rule 27 of the CPC was not attracted at all. The first appellate court as well as the High Court had committed grave error in law in not considering the document for not filing an application to take additional evidence on record. The translated version of the already filed document could not be said to be constituting additional evidence as the original document was already on record of the trial court. It was thus in order to facilitate the just decision of the matter and to enable the court to read the document its translated version had been filed which ought to have been taken on record without any demur by the court below. Interest of justice required it to be taken on record being document recording title.
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New Manek Chowk Spinning And Weavingmills Co. Ltd. And O Vs. Municipal Corporation Of The City Ofahmedabad And Ors | demise, ... and practically to direct the rating authority to value the hereditament equipped with machinery and plant as it appears to the eye." 29. The matter is thus put in Witton Booth on Valuations for Rating (Fourth Edition) at p. 575:"The rateability of plant and machinery under the law which applied universally before 1925, and which still applies to hereditament valued by reference to the profits earned therein depends on legal decisions on what is comprehended by the term "land" These decisions were based on principles applicable to fixtures generally, of which rateable plant and machinery were one kind." 30. It will, therefore, be noticed that the rateability of plant and machinery depended on judicial decisions as to the meaning of the word "land" There is no reason why we should accept those decisions as to what was comprehended by the term "land" when we find in our statutes plant and machinery being excluded therefrom. 31. In 1906 AC 43 (supra) Lord Halsbury expressed himself thus at p. 49:?I decline myself to enter into what I may call the original equities which might have guided this matter. It is enough for me that a long series of decisions, for certainly half a century, have established the bald proposition, which is all I am insisting upon, namely, that although the machinery may not be part of the freehold, it yet is to be taken into account, and in saving that, I do not want to muffle it in a phrase, but what I mean by that is, that to increase the amount of the rate which is exacted from the tenant you may enter into that question and form a judgment upon it although, as a matter of fact, the machinery may not be attached to the freehold." There, the Act in question was Parochial Assessment Act, 1836 under which the assessment of hereditaments was regulated on the principle that the rateable value was the rent which might be expected to be given for the hereditament alone. The contention on behalf of the appellant before the House of Lords was that machinery affixed to the soil so as to become a part of the freehold must be taken into account in assessing the rateable value but no other machinery. Delivering judgment, Lord Halsbury pointed out that:"The overseer had a comparatively simple problem to solve, although it is difficult enough sometimes ; he sees the place being conducted as a brewery, or an iron foundry, or what not, he looks at the premises, he looks at the furniture which is necessary for carrying on the business as a brewery or foundry, he does not in his own mind analyse, and to my mind he ought not to analyse, what would be likely to be the initial arrangements between the intended brewer and the owner of the freehold, to see who should provide this or that engine or what not, but he looks at the premises as they are, as they are being occupied, and as they are being used, and he says to himself, "Well, looking at the whole of the place such and such is the rent which would probably be paid by a tenant from year to year for such an establishment as this"." 32. The problem in our case is not quite the same. The hypothetical tenant would certainly take into consideration the machinery in the building if he was going to rent it for the purpose of running a textile factory.But if the State Legislature had power to levy a tax only on land and buildings, we do not see how the same could be levied on machinery contained in or Situate on the building even though the machinery was there for the use of the building for a particular purpose. 33. It, therefore, appears to us that R. 7 (2) of the rules framed under the Bombay Act of 1949 was beyond the legislative competence of the State. The rule also suffers from another defect. namely, that it does not lay down any principle on which machinery is to be specified by public notice by the Commissioner to be deemed to form part of such building for the purpose of fixing the rateable value, to this, Mr. Setalvad argued that if the building was equipped with machinery for the purpose of running a textile mill, whatever machinery was there for the purpose would be valued. According to him the question would be which of the machinery would help in the enjoyment of the property and thereby add to its rateable value. Unfortunately, the specification of the classes is done from time to time by the Commissioner with the approval of the Corporation irrespective of the question as to where they are to be found.It, therefore, depends on the arbitrary will of the Commissioner as to what machinery he would specify and what he would not Moreover, he is the only person who can examine this question. There is no right of appeal from any specification made under sub-r. (3) of R. 7 except that the Commissioner is to act under the directions of the Standing Committee. Rule 7 (2) shows the all plant and. machinery may not be taken into account for the purpose of valuation and any such plant or machinery which is not included in the classification may escape rateability, however, much they may be prized by the tenant who takes the premises on rent. It seems to us, therefore, that R. 7 (2) is beyond the legislative competence of the State Legislature and sub-r. (3) of R. 7 is also invalid on account of excessive delegation of powers by the Legislature. 34. In view of the above, it is not necessary to go into the question as to whether the Deputy Municipal Commissioner could exercise quasi judicial powers of the Commissioner as regards the determination of the rateable value under S. 49 (I) of the Act and we express no opinion thereon. 35. | 1[ds]There is nothing in the counter affidavit to show that conditions in the City of Ahmedabad with regard to textile mills are such as would make the method laid down at p. 164 of Faradays book applicable. The affidavit does not purport to show that the factories were constructed at or about the same time or in groups or were so similar in their operation that their rental value could be determined at per foot super of floor area applying the contractors basis. There is nothing to show that any textile factory was valued on the contractors basis and that from the figures of valuation so worked out, the rental value per foot super of floor area was determined. On the other hand, the affidavit suggests that because in various cities it was common to let out premises on the basis of floor area, the municipal authorities of Ahmedabad had resorted to this method for fixing the rateable valueWe can take judicial notice of the fact that sometimes godowns or buildings constructed for office purposes are let out on the basis of floor area, but even then, the rate would vary according to the nature of the building and according to the site of the building in the city. It would also depend upon the age of the building and the amenities provided therein. It would be impossible to say that in the City of Ahmedabad a tenant would be willing to pay at the same rate of read for factory accommodation, no matter where the building was situate or when it was put up or how it was constructedWe are, therefore, not satisfied that conditions prerequisite for determination of annual value of textile factories in Ahmedabad on the basis of rental value per foot super of floor area existed at the relevant time nor has it been shown to us that the so-called contractors basis was adopted by the municipal authorities of Ahmedabad. The method is not also one which is generally recognised by authorities on rating. Applied indiscriminately-as it appears to have been done in this case-it is sure to give rise to inequalities as there has been no classification of the factories on any rational basis. Further, there does not seem to be any basis for dividing the factories and the buildings thereof under two general classes as buildings used for processing and buildings for non-processing purposes. What was said by this Court in Lokmanya Mills case, 1962-1 SCR 306 =(AIR 1961 SC 1358 ) (Supra) applies with equal force to what has been done here and we must hold that the municipality did not observe the law and failed in its duty to determine the rateable value of each building and land comprised in each of the textile factories in terms of R. 9 (b) of the rules under the Bombay Provincial Municipal Corporations Act, 1949 so far as the assessment book for the year 1966-67 is concernedIt, therefore, appears to us that R. 7 (2) of the rules framed under the Bombay Act of 1949 was beyond the legislative competence of the State. The rule also suffers from another defect. namely, that it does not lay down any principle on which machinery is to be specified by public notice by the Commissioner to be deemed to form part of such building for the purpose of fixing the rateable value, to this, Mr. Setalvad argued that if the building was equipped with machinery for the purpose of running a textile mill, whatever machinery was there for the purpose would be valued. According to him the question would be which of the machinery would help in the enjoyment of the property and thereby add to its rateable value. Unfortunately, the specification of the classes is done from time to time by the Commissioner with the approval of the Corporation irrespective of the question as to where they are to be found.It, therefore, depends on the arbitrary will of the Commissioner as to what machinery he would specify and what he would not Moreover, he is the only person who can examine this question. There is no right of appeal from any specification made under sub-r. (3) of R. 7 except that the Commissioner is to act under the directions of the Standing Committee. Rule 7 (2) shows the all plant and. machinery may not be taken into account for the purpose of valuation and any such plant or machinery which is not included in the classification may escape rateability, however, much they may be prized by the tenant who takes the premises on rent. It seems to us, therefore, that R. 7 (2) is beyond the legislative competence of the State Legislature and sub-r. (3) of R. 7 is also invalid on account of excessive delegation of powers by the LegislatureIn view of the above, it is not necessary to go into the question as to whether the Deputy Municipal Commissioner could exercise quasi judicial powers of the Commissioner as regards the determination of the rateable value under S. 49 (I) of the Act and we express no opinion thereon. | 1 | 11,403 | 919 | ### 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:
demise, ... and practically to direct the rating authority to value the hereditament equipped with machinery and plant as it appears to the eye." 29. The matter is thus put in Witton Booth on Valuations for Rating (Fourth Edition) at p. 575:"The rateability of plant and machinery under the law which applied universally before 1925, and which still applies to hereditament valued by reference to the profits earned therein depends on legal decisions on what is comprehended by the term "land" These decisions were based on principles applicable to fixtures generally, of which rateable plant and machinery were one kind." 30. It will, therefore, be noticed that the rateability of plant and machinery depended on judicial decisions as to the meaning of the word "land" There is no reason why we should accept those decisions as to what was comprehended by the term "land" when we find in our statutes plant and machinery being excluded therefrom. 31. In 1906 AC 43 (supra) Lord Halsbury expressed himself thus at p. 49:?I decline myself to enter into what I may call the original equities which might have guided this matter. It is enough for me that a long series of decisions, for certainly half a century, have established the bald proposition, which is all I am insisting upon, namely, that although the machinery may not be part of the freehold, it yet is to be taken into account, and in saving that, I do not want to muffle it in a phrase, but what I mean by that is, that to increase the amount of the rate which is exacted from the tenant you may enter into that question and form a judgment upon it although, as a matter of fact, the machinery may not be attached to the freehold." There, the Act in question was Parochial Assessment Act, 1836 under which the assessment of hereditaments was regulated on the principle that the rateable value was the rent which might be expected to be given for the hereditament alone. The contention on behalf of the appellant before the House of Lords was that machinery affixed to the soil so as to become a part of the freehold must be taken into account in assessing the rateable value but no other machinery. Delivering judgment, Lord Halsbury pointed out that:"The overseer had a comparatively simple problem to solve, although it is difficult enough sometimes ; he sees the place being conducted as a brewery, or an iron foundry, or what not, he looks at the premises, he looks at the furniture which is necessary for carrying on the business as a brewery or foundry, he does not in his own mind analyse, and to my mind he ought not to analyse, what would be likely to be the initial arrangements between the intended brewer and the owner of the freehold, to see who should provide this or that engine or what not, but he looks at the premises as they are, as they are being occupied, and as they are being used, and he says to himself, "Well, looking at the whole of the place such and such is the rent which would probably be paid by a tenant from year to year for such an establishment as this"." 32. The problem in our case is not quite the same. The hypothetical tenant would certainly take into consideration the machinery in the building if he was going to rent it for the purpose of running a textile factory.But if the State Legislature had power to levy a tax only on land and buildings, we do not see how the same could be levied on machinery contained in or Situate on the building even though the machinery was there for the use of the building for a particular purpose. 33. It, therefore, appears to us that R. 7 (2) of the rules framed under the Bombay Act of 1949 was beyond the legislative competence of the State. The rule also suffers from another defect. namely, that it does not lay down any principle on which machinery is to be specified by public notice by the Commissioner to be deemed to form part of such building for the purpose of fixing the rateable value, to this, Mr. Setalvad argued that if the building was equipped with machinery for the purpose of running a textile mill, whatever machinery was there for the purpose would be valued. According to him the question would be which of the machinery would help in the enjoyment of the property and thereby add to its rateable value. Unfortunately, the specification of the classes is done from time to time by the Commissioner with the approval of the Corporation irrespective of the question as to where they are to be found.It, therefore, depends on the arbitrary will of the Commissioner as to what machinery he would specify and what he would not Moreover, he is the only person who can examine this question. There is no right of appeal from any specification made under sub-r. (3) of R. 7 except that the Commissioner is to act under the directions of the Standing Committee. Rule 7 (2) shows the all plant and. machinery may not be taken into account for the purpose of valuation and any such plant or machinery which is not included in the classification may escape rateability, however, much they may be prized by the tenant who takes the premises on rent. It seems to us, therefore, that R. 7 (2) is beyond the legislative competence of the State Legislature and sub-r. (3) of R. 7 is also invalid on account of excessive delegation of powers by the Legislature. 34. In view of the above, it is not necessary to go into the question as to whether the Deputy Municipal Commissioner could exercise quasi judicial powers of the Commissioner as regards the determination of the rateable value under S. 49 (I) of the Act and we express no opinion thereon. 35.
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### Explanation:
There is nothing in the counter affidavit to show that conditions in the City of Ahmedabad with regard to textile mills are such as would make the method laid down at p. 164 of Faradays book applicable. The affidavit does not purport to show that the factories were constructed at or about the same time or in groups or were so similar in their operation that their rental value could be determined at per foot super of floor area applying the contractors basis. There is nothing to show that any textile factory was valued on the contractors basis and that from the figures of valuation so worked out, the rental value per foot super of floor area was determined. On the other hand, the affidavit suggests that because in various cities it was common to let out premises on the basis of floor area, the municipal authorities of Ahmedabad had resorted to this method for fixing the rateable valueWe can take judicial notice of the fact that sometimes godowns or buildings constructed for office purposes are let out on the basis of floor area, but even then, the rate would vary according to the nature of the building and according to the site of the building in the city. It would also depend upon the age of the building and the amenities provided therein. It would be impossible to say that in the City of Ahmedabad a tenant would be willing to pay at the same rate of read for factory accommodation, no matter where the building was situate or when it was put up or how it was constructedWe are, therefore, not satisfied that conditions prerequisite for determination of annual value of textile factories in Ahmedabad on the basis of rental value per foot super of floor area existed at the relevant time nor has it been shown to us that the so-called contractors basis was adopted by the municipal authorities of Ahmedabad. The method is not also one which is generally recognised by authorities on rating. Applied indiscriminately-as it appears to have been done in this case-it is sure to give rise to inequalities as there has been no classification of the factories on any rational basis. Further, there does not seem to be any basis for dividing the factories and the buildings thereof under two general classes as buildings used for processing and buildings for non-processing purposes. What was said by this Court in Lokmanya Mills case, 1962-1 SCR 306 =(AIR 1961 SC 1358 ) (Supra) applies with equal force to what has been done here and we must hold that the municipality did not observe the law and failed in its duty to determine the rateable value of each building and land comprised in each of the textile factories in terms of R. 9 (b) of the rules under the Bombay Provincial Municipal Corporations Act, 1949 so far as the assessment book for the year 1966-67 is concernedIt, therefore, appears to us that R. 7 (2) of the rules framed under the Bombay Act of 1949 was beyond the legislative competence of the State. The rule also suffers from another defect. namely, that it does not lay down any principle on which machinery is to be specified by public notice by the Commissioner to be deemed to form part of such building for the purpose of fixing the rateable value, to this, Mr. Setalvad argued that if the building was equipped with machinery for the purpose of running a textile mill, whatever machinery was there for the purpose would be valued. According to him the question would be which of the machinery would help in the enjoyment of the property and thereby add to its rateable value. Unfortunately, the specification of the classes is done from time to time by the Commissioner with the approval of the Corporation irrespective of the question as to where they are to be found.It, therefore, depends on the arbitrary will of the Commissioner as to what machinery he would specify and what he would not Moreover, he is the only person who can examine this question. There is no right of appeal from any specification made under sub-r. (3) of R. 7 except that the Commissioner is to act under the directions of the Standing Committee. Rule 7 (2) shows the all plant and. machinery may not be taken into account for the purpose of valuation and any such plant or machinery which is not included in the classification may escape rateability, however, much they may be prized by the tenant who takes the premises on rent. It seems to us, therefore, that R. 7 (2) is beyond the legislative competence of the State Legislature and sub-r. (3) of R. 7 is also invalid on account of excessive delegation of powers by the LegislatureIn view of the above, it is not necessary to go into the question as to whether the Deputy Municipal Commissioner could exercise quasi judicial powers of the Commissioner as regards the determination of the rateable value under S. 49 (I) of the Act and we express no opinion thereon.
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Ku. Sonia Bhatia Vs. State Of U.P. & Ors | concept of love and affection and this decision appears to be on all fours with the facts of the present case. Realising this predicament Mr. Kacker submitted that the words adequate consideration used in the Income-tax Act denote a different texture. Mr. Kacker argued that it is not permissible to interpret or use an expression in one Act as having the same meaning in another Act which is of a different kind. Of course, there can be no. dispute with this proposition but then the Act as also the Income-tax Act have both used the words adequate consideration which, as we have already held, are terms of well-known legal significance having a well recognised popular sense and hence they would convey the same meaning and import whenever used in other statutes unless a contrary intention appears from the language employed by the legislature in the statute. Moreover, the object of the Income-tax Act as also the present Act seems to be more or less identical. Whereas the object of the Income-tax Act in enacting Section 16 (3) (b) which is extracted below is to circumvent and prevent a growing tendency on the part of the assessees to avoid or reduce tax liability by means of settlements :"16 (3) ...............(a) ........................(b) so much of the income of any person or association of persons as arises from assets transferred otherwise than for adequate consideration to the person or association by such individual for the benefit of his wife or a minor child or both."In the instant case also the avowed object of sub-section (6) of Section 5 of the Act is to prevent the large landholders from evading the ceiling law by executing transfers. instruments, or gift so as to reduce their surplus area. Where the two statutes have a common and identical object then the legal terms used in one statute must be given the same meaning in the other. It cannot be said that the words adequate consideration appearing in sub-section (6) of Section 5 of the Act do not take their colour from the context but are in conformity with the main object of the Act; to prevent evasion of the ceiling law by large tenure-holders in anticipation of the passing of the Ceiling Law. For these reasons, therefore, the argument of Mr. Kacker on this score must be rejected. We, therefore, hold that in view of the interpretation placed by this Court on the words adequate consideration which fully applies to the present case and to the same language employed in subsection (6) of Section 5 of the Act, a gift is not only impliedly but expressly excluded by the Act.27. In the Division Bench decision of the Allahabad High Court referred to above Civil Writ Petn. No. 915 of 1975 D/- 10-7-1976, after a consideration of a large number of authorities the following observations were made :"The Legislature while enacting the U. P. Imposition of Ceiling on Land Holdings Act. was alive to the provisions of the Transfer of property Act dealing with the transfer at immovable property. The terms transfer, sale, mortgage and lease have not been defined in the Act. Therefore, these terms must have been used only in the sense in which they have been used in the Transfer of Property Act. If the Legislature intended to use those terms in a different sense and with a different connotation, it would have defined those terms in the Act. But that has not been done............................................The legislature, however, thought that there may be genuine and bona fide transfers for consideration. To protect such tenure-holders and other transfers, proviso (b) to sub-section (6) of Section 5 of the Act was enacted. It saved transfers for adequate consideration. Gift is a gratuitous transfer and there is no. consideration which obviously means valuable consideration. If transfer for love and affection is taken to be a transfer for consideration then the purpose of the Act would be completely defeated as the tenure-holders would transfer their land by gift after 24th January 1971."28. We fully endorse the observations made by the Division Bench which lay down the correct law on the subject and we overrule the decision of Banerji, J. in Fateh Singhs case, AIR 1978 NOC 101 (All) (supra).29. Lastly, it was urged by Mr. Kacker that this is an extremely hard case where the grandfather of the donee wanted to make a beneficial provision for his grand daughter after having lost his two sons in the prime of their life due to air crash accidents while serving in the Air Force. It is true that the District Judge has come to a clear finding that the gift in question is bona fide and has been executed in good faith but as the gift does not fulfil the other ingredients of the section namely, that it is not for adequate consideration, we are afraid. however laudable the object of the donor may have been, the gift has to fail because the genuine attempt of the donor to benefit his grand daughter seems to have been thwarted by the intervention of sub-section (6) of Section 5 of the Act. This is undoubtedly a serious hardship but it cannot be helped. We must remember that the Act is a valuable piece of social legislation with the avowed object of ensuring equitable distribution of the land by taking away land from large tenure-holders and distributing the same among landless tenants or using the same for public utility schemes which is in the larger interest of the community at large. The Act seems to implement one of the most important constitutional directives contained in Part IV of the Constitution of India. If in this process a few individuals suffer severe hardship that cannot be helped, for individual interests must yield to the larger interests of the community or the country as indeed every noble cause claims its martyr.30. As this was the only point raised before us, we find no. merit in the same. | 1[ds]9. It is manifest that if these conditions are satisfied and proved to the satisfaction of the Prescribed Authority then the burden which lies on the claimant under Explanation II would have been discharged and the transfer would not be ignored but would fall under the protective umbrella contained in Cl. (b) of the proviso. It may be noticed that the legislature in its wisdom has neither defined the word transfer in any of the definitions of the Act nor has clarified it. The primary object of the Act is to prevent the tenure holders from evading the Law of Ceiling by making fictitious transfers even by registered documents either before or after the duel date so as to evade the provisions of the Act and thus frustrate the very object and the social purpose for which the Act had been passed. In these circumstances, therefore, the word transfer has obviously been used by the legislature in the general sense of the term as defined in the Transfer of Property Act, which is the statute that governs all transfers of movable or immovable properties. In other words, the word transfer being a term of wellknown legal significance having well ascertained incidents, the legislature did not think it necessary to define the term transfer separately. Similarly, the word consideration also being a term commonly used to denote contracts, sales and transactions, has been used in the same sense, that is to say, as defined by S. 2 (d) of the Contract Act.10. It is well settled that whenever the legislature uses certain terms or expressions of well-known legal significance or connotation the courts must interpret them as used or understood in the popular sense.Against this background we have now to consider the real intention of the words "transfer for adequate consideration" as used in clause (b) of the proviso. The High Court has held that although the deed of gift is a transfer but as it is a transfer without any consideration, therefore such a transfer does not fulfil one of the essential ingredients mentioned in clause (b) of the proviso, namely, that it should be for consideration. The High Court has further held that its view is reinforced by the word adequate which qualifies the word consideration which completely rules out a transfer in the nature of a gift. The High Court was of the view that a transfer of property by way of a gift being a purely gratuitous transfer made out of love and affection or for the spiritual benefit of the donor, falls completely beyond the ambit of Cl. (b) of the proviso and, therefore, has to be ignored under the provisions of the said sub-section (6) of Section 5 of the Act.We have given our anxious consideration to the arguments put forward by Mr. Kacker and although the arguments are extremely attractive yet we find ourselves unable to agree with the same.From a conspectus, therefore, of the definitions contained in the dictionaries and the books regarding a gift or an adequate consideration the inescapable conclusion that follows is that consideration means a reasonable equivalent or other valuable benefit passed on by the promisor to the promisee or by the transferor to the transferee similarly, when the word consideration is qualified by the word adequate, it makes consideration stronger so as to make it sufficient and valuable having regard to the facts, circumstances and necessities of the case. It has also been seen from the discussions of the various authorities mentioned above that a gift is undoubtedly a transfer which does not contain any element of consideration in any shape or form. In fact, where there is any equivalent or benefit measured in terms of money in respect of a gift the transaction ceases to be a gift and assumes a different colour. It has been rightly pointed out in one of the books referred to above that we should not try to confuse the motive or the purpose of making a gift with the consideration which is the subject matter of the gift. Love, affection, spiritual benefit and many other factors may enter in the intention of the donor to make a gift but these filial considerations cannot be called or held to be legal considerations as understood by law. It is manifest, therefore, that the passing of monetary consideration is completely foreign to the concept of a gift having regard to the nature, character and the circumstances under which such a transfer takes place. Furthermore, when the legislature has used the word transfer it at once invokes the provisions of the Transfer of Property Act.It would thus appear that this Court clearly held that words adequate consideration completely exclude the concept of love and affection and this decision appears to be on all fours with the facts of the present case. Realising this predicament Mr. Kacker submitted that the words adequate consideration used in the Income-tax Act denote a different texture. Mr. Kacker argued that it is not permissible to interpret or use an expression in one Act as having the same meaning in another Act which is of a different kind. Of course, there can be no. dispute with this proposition but then the Act as also the Income-tax Act have both used the words adequate consideration which, as we have already held, are terms of well-known legal significance having a well recognised popular sense and hence they would convey the same meaning and import whenever used in other statutes unless a contrary intention appears from the language employed by the legislature in the statute. Moreover, the object of the Income-tax Act as also the present Act seems to be more or lessthe instant case also the avowed object of sub-section (6) of Section 5 of the Act is to prevent the large landholders from evading the ceiling law by executing transfers. instruments, or gift so as to reduce their surplus area. Where the two statutes have a common and identical object then the legal terms used in one statute must be given the same meaning in the other. It cannot be said that the words adequate consideration appearing in sub-section (6) of Section 5 of the Act do not take their colour from the context but are in conformity with the main object of the Act; to prevent evasion of the ceiling law by large tenure-holders in anticipation of the passing of the Ceiling Law. For these reasons, therefore, the argument of Mr. Kacker on this score must be rejected. We, therefore, hold that in view of the interpretation placed by this Court on the words adequate consideration which fully applies to the present case and to the same language employed in subsection (6) of Section 5 of the Act, a gift is not only impliedly but expressly excluded by the Act.We fully endorse the observations made by the Division Bench which lay down the correct law on the subject and we overrule the decision of Banerji, J. in Fateh Singhs case, AIR 1978 NOC 101 (All)is true that the District Judge has come to a clear finding that the gift in question is bona fide and has been executed in good faith but as the gift does not fulfil the other ingredients of the section namely, that it is not for adequate consideration, we are afraid. however laudable the object of the donor may have been, the gift has to fail because the genuine attempt of the donor to benefit his grand daughter seems to have been thwarted by the intervention of sub-section (6) of Section 5 of the Act. This is undoubtedly a serious hardship but it cannot be helped. We must remember that the Act is a valuable piece of social legislation with the avowed object of ensuring equitable distribution of the land by taking away land from large tenure-holders and distributing the same among landless tenants or using the same for public utility schemes which is in the larger interest of the community at large. The Act seems to implement one of the most important constitutional directives contained in Part IV of the Constitution of India. If in this process a few individuals suffer severe hardship that cannot be helped, for individual interests must yield to the larger interests of the community or the country as indeed every noble cause claims its martyr.30. As this was the only point raised before us, we find no. merit in the same. | 1 | 7,188 | 1,525 | ### Instruction:
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concept of love and affection and this decision appears to be on all fours with the facts of the present case. Realising this predicament Mr. Kacker submitted that the words adequate consideration used in the Income-tax Act denote a different texture. Mr. Kacker argued that it is not permissible to interpret or use an expression in one Act as having the same meaning in another Act which is of a different kind. Of course, there can be no. dispute with this proposition but then the Act as also the Income-tax Act have both used the words adequate consideration which, as we have already held, are terms of well-known legal significance having a well recognised popular sense and hence they would convey the same meaning and import whenever used in other statutes unless a contrary intention appears from the language employed by the legislature in the statute. Moreover, the object of the Income-tax Act as also the present Act seems to be more or less identical. Whereas the object of the Income-tax Act in enacting Section 16 (3) (b) which is extracted below is to circumvent and prevent a growing tendency on the part of the assessees to avoid or reduce tax liability by means of settlements :"16 (3) ...............(a) ........................(b) so much of the income of any person or association of persons as arises from assets transferred otherwise than for adequate consideration to the person or association by such individual for the benefit of his wife or a minor child or both."In the instant case also the avowed object of sub-section (6) of Section 5 of the Act is to prevent the large landholders from evading the ceiling law by executing transfers. instruments, or gift so as to reduce their surplus area. Where the two statutes have a common and identical object then the legal terms used in one statute must be given the same meaning in the other. It cannot be said that the words adequate consideration appearing in sub-section (6) of Section 5 of the Act do not take their colour from the context but are in conformity with the main object of the Act; to prevent evasion of the ceiling law by large tenure-holders in anticipation of the passing of the Ceiling Law. For these reasons, therefore, the argument of Mr. Kacker on this score must be rejected. We, therefore, hold that in view of the interpretation placed by this Court on the words adequate consideration which fully applies to the present case and to the same language employed in subsection (6) of Section 5 of the Act, a gift is not only impliedly but expressly excluded by the Act.27. In the Division Bench decision of the Allahabad High Court referred to above Civil Writ Petn. No. 915 of 1975 D/- 10-7-1976, after a consideration of a large number of authorities the following observations were made :"The Legislature while enacting the U. P. Imposition of Ceiling on Land Holdings Act. was alive to the provisions of the Transfer of property Act dealing with the transfer at immovable property. The terms transfer, sale, mortgage and lease have not been defined in the Act. Therefore, these terms must have been used only in the sense in which they have been used in the Transfer of Property Act. If the Legislature intended to use those terms in a different sense and with a different connotation, it would have defined those terms in the Act. But that has not been done............................................The legislature, however, thought that there may be genuine and bona fide transfers for consideration. To protect such tenure-holders and other transfers, proviso (b) to sub-section (6) of Section 5 of the Act was enacted. It saved transfers for adequate consideration. Gift is a gratuitous transfer and there is no. consideration which obviously means valuable consideration. If transfer for love and affection is taken to be a transfer for consideration then the purpose of the Act would be completely defeated as the tenure-holders would transfer their land by gift after 24th January 1971."28. We fully endorse the observations made by the Division Bench which lay down the correct law on the subject and we overrule the decision of Banerji, J. in Fateh Singhs case, AIR 1978 NOC 101 (All) (supra).29. Lastly, it was urged by Mr. Kacker that this is an extremely hard case where the grandfather of the donee wanted to make a beneficial provision for his grand daughter after having lost his two sons in the prime of their life due to air crash accidents while serving in the Air Force. It is true that the District Judge has come to a clear finding that the gift in question is bona fide and has been executed in good faith but as the gift does not fulfil the other ingredients of the section namely, that it is not for adequate consideration, we are afraid. however laudable the object of the donor may have been, the gift has to fail because the genuine attempt of the donor to benefit his grand daughter seems to have been thwarted by the intervention of sub-section (6) of Section 5 of the Act. This is undoubtedly a serious hardship but it cannot be helped. We must remember that the Act is a valuable piece of social legislation with the avowed object of ensuring equitable distribution of the land by taking away land from large tenure-holders and distributing the same among landless tenants or using the same for public utility schemes which is in the larger interest of the community at large. The Act seems to implement one of the most important constitutional directives contained in Part IV of the Constitution of India. If in this process a few individuals suffer severe hardship that cannot be helped, for individual interests must yield to the larger interests of the community or the country as indeed every noble cause claims its martyr.30. As this was the only point raised before us, we find no. merit in the same.
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transfer made out of love and affection or for the spiritual benefit of the donor, falls completely beyond the ambit of Cl. (b) of the proviso and, therefore, has to be ignored under the provisions of the said sub-section (6) of Section 5 of the Act.We have given our anxious consideration to the arguments put forward by Mr. Kacker and although the arguments are extremely attractive yet we find ourselves unable to agree with the same.From a conspectus, therefore, of the definitions contained in the dictionaries and the books regarding a gift or an adequate consideration the inescapable conclusion that follows is that consideration means a reasonable equivalent or other valuable benefit passed on by the promisor to the promisee or by the transferor to the transferee similarly, when the word consideration is qualified by the word adequate, it makes consideration stronger so as to make it sufficient and valuable having regard to the facts, circumstances and necessities of the case. It has also been seen from the discussions of the various authorities mentioned above that a gift is undoubtedly a transfer which does not contain any element of consideration in any shape or form. In fact, where there is any equivalent or benefit measured in terms of money in respect of a gift the transaction ceases to be a gift and assumes a different colour. It has been rightly pointed out in one of the books referred to above that we should not try to confuse the motive or the purpose of making a gift with the consideration which is the subject matter of the gift. Love, affection, spiritual benefit and many other factors may enter in the intention of the donor to make a gift but these filial considerations cannot be called or held to be legal considerations as understood by law. It is manifest, therefore, that the passing of monetary consideration is completely foreign to the concept of a gift having regard to the nature, character and the circumstances under which such a transfer takes place. Furthermore, when the legislature has used the word transfer it at once invokes the provisions of the Transfer of Property Act.It would thus appear that this Court clearly held that words adequate consideration completely exclude the concept of love and affection and this decision appears to be on all fours with the facts of the present case. Realising this predicament Mr. Kacker submitted that the words adequate consideration used in the Income-tax Act denote a different texture. Mr. Kacker argued that it is not permissible to interpret or use an expression in one Act as having the same meaning in another Act which is of a different kind. Of course, there can be no. dispute with this proposition but then the Act as also the Income-tax Act have both used the words adequate consideration which, as we have already held, are terms of well-known legal significance having a well recognised popular sense and hence they would convey the same meaning and import whenever used in other statutes unless a contrary intention appears from the language employed by the legislature in the statute. Moreover, the object of the Income-tax Act as also the present Act seems to be more or lessthe instant case also the avowed object of sub-section (6) of Section 5 of the Act is to prevent the large landholders from evading the ceiling law by executing transfers. instruments, or gift so as to reduce their surplus area. Where the two statutes have a common and identical object then the legal terms used in one statute must be given the same meaning in the other. It cannot be said that the words adequate consideration appearing in sub-section (6) of Section 5 of the Act do not take their colour from the context but are in conformity with the main object of the Act; to prevent evasion of the ceiling law by large tenure-holders in anticipation of the passing of the Ceiling Law. For these reasons, therefore, the argument of Mr. Kacker on this score must be rejected. We, therefore, hold that in view of the interpretation placed by this Court on the words adequate consideration which fully applies to the present case and to the same language employed in subsection (6) of Section 5 of the Act, a gift is not only impliedly but expressly excluded by the Act.We fully endorse the observations made by the Division Bench which lay down the correct law on the subject and we overrule the decision of Banerji, J. in Fateh Singhs case, AIR 1978 NOC 101 (All)is true that the District Judge has come to a clear finding that the gift in question is bona fide and has been executed in good faith but as the gift does not fulfil the other ingredients of the section namely, that it is not for adequate consideration, we are afraid. however laudable the object of the donor may have been, the gift has to fail because the genuine attempt of the donor to benefit his grand daughter seems to have been thwarted by the intervention of sub-section (6) of Section 5 of the Act. This is undoubtedly a serious hardship but it cannot be helped. We must remember that the Act is a valuable piece of social legislation with the avowed object of ensuring equitable distribution of the land by taking away land from large tenure-holders and distributing the same among landless tenants or using the same for public utility schemes which is in the larger interest of the community at large. The Act seems to implement one of the most important constitutional directives contained in Part IV of the Constitution of India. If in this process a few individuals suffer severe hardship that cannot be helped, for individual interests must yield to the larger interests of the community or the country as indeed every noble cause claims its martyr.30. As this was the only point raised before us, we find no. merit in the same.
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Daulatram Rawatmall Vs. Commissioner of Income Tax (Central) Calcutta | on November 22, 1944 an amount of Rs. 50, 000/- in cash was tendered to the Bara Bazar branch of the Central Bank of India, Calcutta. The cash so tendered was transferred to the Bombay Head Office of the Bank and a demand draft for Rs. 5, 00, 000/- was issued through the Bombay Head office of the bank to its Jamnagar branch. With that amount a fixed deposit account was opened in the name of Raghunath Prasad Agarwal with the Jamnagar branch of Central Bank on November 8, 1944. The other deposit in the name Biswanath Gupta followed a similar course though the dates were different. On December 2, 1944 a letter of guarantee and a letter of continuity were signed by Raghunath Prasad Agarwal and Biswanath Gupta that the Calcutta branch of the Central bank along with pronotes signed by the appellant firm for keeping these two deposits under lien of the Bank against overdraft facilities. The overdraft account itself had been opened on or about November 24, 1944. (2) At first the assessees overdraft facility was stated to be a clean overdraft without any security. It was, however, detected during investigation that the overdraft was against the collateral security of the said two fixed deposits. (3) The office of the appellant was in the same premises in which the Bara bazar branch of the Central Bank was situated and from where the two remittances aggregating Rs. 10, 00, 000/- were made for opening deposit accounts at Jamnagar. (4) No consideration had been received by either of the holders of these two deposits for the accommodation that was extended to the appellant. (5) Raghunath Prasad in his individual assessment for the assessment year 1947-48 had explained the source of Rs. 5, 00, 000/- kept as fixed deposit with the Jamnagar branch of the Central bank and had asserted that the said amount belonged to him. Biswanath also had claimed that the amount of fixed deposit was his own money and had given an explanation how he had acquired the sum of Rs. 5, 00, 000/-. The explanation of Raghunath Prasad in his personal assessment was accepted by the Income Tax Officer but in the assessment of the appellant firm the Income-tax authorities declined to accept the explanation given by Raghunath Prasad.5. The High Court approached the matter thus : The onus lay on the department to show that the aforesaid deposits in the names of Raghunath Prasad and Biswanath belonged to the appellant. In case of the deposit in the name of Raghunath Prasad there were additional facts which went against the case of the appellant. Raghunath Prasad claimed that he had himself started the business in share brokerage and share dealings from February 17, 1944. His capital account on September 26, 1944 merely showed a balance of Rs. 563/-. The next assessment for 1946-47 for the period September 27, 1944 to October 15, 1945 showed that his capital account had a balance of only Rs. 29, 664/- as on October 15, 1945. By that time Raghunath Prasad had already deposited the amount of Rs. 5, 00, 000/- in the manner mentioned before on November 2, 1944. But later on during the period ending October 15, 1946 his capital account was credited with an amount of Rs. 5, 07, 500/-. It was further established that the deposit account in the name of Raghunath Prasad was adjusted against the overdraft account of the appellant. Raghunath Prasad died on August 16, 1945. His fixed deposit matured on December 19, 1945. The amount of the deposit was not paid to the heirs of Raghunath Prasad but was adjusted against the overdraft of the firm. The amount due to the Bank was liquidated but the appellants account books showed a credit of Rs. 5, 00, 000/- in the account of Raghunath Prasad. The sum of Rs. 7, 500/- which was received on account of interest was also paid to the appellant under a stamped receipt on December 19, 1945. According to the High Court two inferences were possible : (1) That the money belonged to the appellant otherwise it could not have been adjusted against its loan; (2) that the money belonged to Raghunath Prasad and it was adjusted against the dues of the appellant because it was given as security by Raghunath Prasad. The Tribunal had drawn the first inference. It was not possible, therefore, for the High Court not to accept the conclusion of the Tribunal. About the other amount of Rs. 4, 50, 000/- out of the deposit in the name of Biswanath the High Court did not find that the materials on the record were sufficient for holding that the money belonged to the appellant.6. The sole argument that has been addressed on behalf of the appellant is that there was hardly any justification for the High Court making a distinction between the two deposits, namely, the one in the name of Biswanath and the other in the name of Raghunath. The deposits were made in the same manner and in similar circumstances and the overdraft facilities were obtained by the appellant on the basis of both the fixed deposits. In the individual assessments also of both these persons their explanation had been accepted by the respective Income-tax authorities about the source of the funds from which they made the deposits. It has also been emphasised that Raghunath was running his own business and that his explanation had been fully accepted in his individual assessment and the income tax authorities could not sit in appeal over the decision in his assessment which was final and in which a definite finding had been given that the money belonged to him. All these matters have been fully dealt with in the judgment under appeal and we are unable to accede to the contention that no distinction could be made between the deposit which stood in the name of Biswanath and the amount which was deposited in the name of Raghunath. | 0[ds]The Tribunal had drawn the first inference. It was not possible, therefore, for the High Court not to accept the conclusion of the Tribunal. About the other amount of Rs. 4, 50, 000/out of the deposit in the name of Biswanath the High Court did not find that the materials on the record were sufficient for holding that the money belonged to the appellant.6. The sole argument that has been addressed on behalf of the appellant is that there was hardly any justification for the High Court making a distinction between the two deposits, namely, the one in the name of Biswanath and the other in the name of Raghunath. The deposits were made in the same manner and in similar circumstances and the overdraft facilities were obtained by the appellant on the basis of both the fixed deposits. In the individual assessments also of both these persons their explanation had been accepted by the respectiveauthorities about the source of the funds from which they made the deposits. It has also been emphasised that Raghunath was running his own business and that his explanation had been fully accepted in his individual assessment and the income tax authorities could not sit in appeal over the decision in his assessment which was final and in which a definite finding had been given that the money belonged to him. All these matters have been fully dealt with in the judgment under appeal and we are unable to accede to the contention that no distinction could be made between the deposit which stood in the name of Biswanath and the amount which was deposited in the name of Raghunath. | 0 | 1,964 | 294 | ### Instruction:
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on November 22, 1944 an amount of Rs. 50, 000/- in cash was tendered to the Bara Bazar branch of the Central Bank of India, Calcutta. The cash so tendered was transferred to the Bombay Head Office of the Bank and a demand draft for Rs. 5, 00, 000/- was issued through the Bombay Head office of the bank to its Jamnagar branch. With that amount a fixed deposit account was opened in the name of Raghunath Prasad Agarwal with the Jamnagar branch of Central Bank on November 8, 1944. The other deposit in the name Biswanath Gupta followed a similar course though the dates were different. On December 2, 1944 a letter of guarantee and a letter of continuity were signed by Raghunath Prasad Agarwal and Biswanath Gupta that the Calcutta branch of the Central bank along with pronotes signed by the appellant firm for keeping these two deposits under lien of the Bank against overdraft facilities. The overdraft account itself had been opened on or about November 24, 1944. (2) At first the assessees overdraft facility was stated to be a clean overdraft without any security. It was, however, detected during investigation that the overdraft was against the collateral security of the said two fixed deposits. (3) The office of the appellant was in the same premises in which the Bara bazar branch of the Central Bank was situated and from where the two remittances aggregating Rs. 10, 00, 000/- were made for opening deposit accounts at Jamnagar. (4) No consideration had been received by either of the holders of these two deposits for the accommodation that was extended to the appellant. (5) Raghunath Prasad in his individual assessment for the assessment year 1947-48 had explained the source of Rs. 5, 00, 000/- kept as fixed deposit with the Jamnagar branch of the Central bank and had asserted that the said amount belonged to him. Biswanath also had claimed that the amount of fixed deposit was his own money and had given an explanation how he had acquired the sum of Rs. 5, 00, 000/-. The explanation of Raghunath Prasad in his personal assessment was accepted by the Income Tax Officer but in the assessment of the appellant firm the Income-tax authorities declined to accept the explanation given by Raghunath Prasad.5. The High Court approached the matter thus : The onus lay on the department to show that the aforesaid deposits in the names of Raghunath Prasad and Biswanath belonged to the appellant. In case of the deposit in the name of Raghunath Prasad there were additional facts which went against the case of the appellant. Raghunath Prasad claimed that he had himself started the business in share brokerage and share dealings from February 17, 1944. His capital account on September 26, 1944 merely showed a balance of Rs. 563/-. The next assessment for 1946-47 for the period September 27, 1944 to October 15, 1945 showed that his capital account had a balance of only Rs. 29, 664/- as on October 15, 1945. By that time Raghunath Prasad had already deposited the amount of Rs. 5, 00, 000/- in the manner mentioned before on November 2, 1944. But later on during the period ending October 15, 1946 his capital account was credited with an amount of Rs. 5, 07, 500/-. It was further established that the deposit account in the name of Raghunath Prasad was adjusted against the overdraft account of the appellant. Raghunath Prasad died on August 16, 1945. His fixed deposit matured on December 19, 1945. The amount of the deposit was not paid to the heirs of Raghunath Prasad but was adjusted against the overdraft of the firm. The amount due to the Bank was liquidated but the appellants account books showed a credit of Rs. 5, 00, 000/- in the account of Raghunath Prasad. The sum of Rs. 7, 500/- which was received on account of interest was also paid to the appellant under a stamped receipt on December 19, 1945. According to the High Court two inferences were possible : (1) That the money belonged to the appellant otherwise it could not have been adjusted against its loan; (2) that the money belonged to Raghunath Prasad and it was adjusted against the dues of the appellant because it was given as security by Raghunath Prasad. The Tribunal had drawn the first inference. It was not possible, therefore, for the High Court not to accept the conclusion of the Tribunal. About the other amount of Rs. 4, 50, 000/- out of the deposit in the name of Biswanath the High Court did not find that the materials on the record were sufficient for holding that the money belonged to the appellant.6. The sole argument that has been addressed on behalf of the appellant is that there was hardly any justification for the High Court making a distinction between the two deposits, namely, the one in the name of Biswanath and the other in the name of Raghunath. The deposits were made in the same manner and in similar circumstances and the overdraft facilities were obtained by the appellant on the basis of both the fixed deposits. In the individual assessments also of both these persons their explanation had been accepted by the respective Income-tax authorities about the source of the funds from which they made the deposits. It has also been emphasised that Raghunath was running his own business and that his explanation had been fully accepted in his individual assessment and the income tax authorities could not sit in appeal over the decision in his assessment which was final and in which a definite finding had been given that the money belonged to him. All these matters have been fully dealt with in the judgment under appeal and we are unable to accede to the contention that no distinction could be made between the deposit which stood in the name of Biswanath and the amount which was deposited in the name of Raghunath.
### Response:
0
### Explanation:
The Tribunal had drawn the first inference. It was not possible, therefore, for the High Court not to accept the conclusion of the Tribunal. About the other amount of Rs. 4, 50, 000/out of the deposit in the name of Biswanath the High Court did not find that the materials on the record were sufficient for holding that the money belonged to the appellant.6. The sole argument that has been addressed on behalf of the appellant is that there was hardly any justification for the High Court making a distinction between the two deposits, namely, the one in the name of Biswanath and the other in the name of Raghunath. The deposits were made in the same manner and in similar circumstances and the overdraft facilities were obtained by the appellant on the basis of both the fixed deposits. In the individual assessments also of both these persons their explanation had been accepted by the respectiveauthorities about the source of the funds from which they made the deposits. It has also been emphasised that Raghunath was running his own business and that his explanation had been fully accepted in his individual assessment and the income tax authorities could not sit in appeal over the decision in his assessment which was final and in which a definite finding had been given that the money belonged to him. All these matters have been fully dealt with in the judgment under appeal and we are unable to accede to the contention that no distinction could be made between the deposit which stood in the name of Biswanath and the amount which was deposited in the name of Raghunath.
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M. R. Patel Vs. State Of Bihar And Others | appellant to move the Excise Commissioner for reconsideration of his order dated November 14, 1956. On being moved by the appellant under the liberty so granted by the Board of Revenue, the Excise Commissioner by his order dated March 5, 1958 reviewed and set aside his previous order on a consideration of the general directions issued by the Board of Revenue, the Boards order dated March 20, 1957 and the special circumstances of the case. Neither the original order dated November 14, 1956 nor the subsequent order dated March 5, 1958 was passed by the Excise Commissioner under S. 35 on a consideration of the matters referred to in that Section. The finality of S. 35 did not attach to these orders and the Board of Revenue had ample power to revise them under S. 8. 4. Mr. Prasad next referred us to S. 40 of the Act and the standard form of license for the retail vend of country spirit, and contended that only the authority granting the license could fix the amount of the security, and one of the conditions of the license was that the licensee would be required to deposit only the amount so fixed but the Board of revenue by its order dated October 4, 1959 illegally and in excess of its powers altered the amount of the security so fixed and corresponding condition in the license for the deposit of the amount. This argument is based on a misreading of the order of October 4, 1959, and must be rejected. By that order, the Board expressly directed that there would be no change in the amount of the security during the currency of the license. The licenses were due to expire on March 31, 1960. The Board directed that if and when the licenses were renewed with effect from the next licensing year, the proper security should be demanded from the licensee as a condition of the renewal. No exception can be taken to this direction. The licensee had no vested right to a renewal of the license. Section 45 of the Act provides that he shall have no claim to its renewal. The licensing authority was not bound to renew the license. If, in its discretion, it granted a renewal, it could require the licensee to give proper security as a condition of the renewal. On a true construction of Ss. 38 and 91 of the Act it must be held that the Board, in exercise of its powers under S. 38 read with S. 91, could from time to time issue general directions with regard to the conditions of any license granted under the Act including the amount of the security to be deposited by the license. In exercise of its powers under Ss. 38 and 91, the Board had fixed the security deposit of an Excise shop working under the sliding scale system as equivalent to two months average license fees of the shop. The Board was entitled to direct, as it did by the order dated October 4, 1961, that the general directions issued by it under Ss. 38 and 91 should be observed and carried out by the licensing authority and the proper security in accordance with those directions should be demanded if and when the licenses were next renewed. 5. Mr. Prasad next contended that the direction for the increase of the security at the time of the renewal of the licenses is contrary to the instruction No. 101 (10) of the Board of Revenue at p. 39 of Vol. III of the Bihar and Orissa Excise Mannual, 1955 Edn. There is not substance in this contention. In its order dated October 4, 1959, the Board of Revenue exhaustively reviewed all the relevant instructions issued by it from time to time, and rightly pointed out that instruction No. 101 (10) read with the Boards circular letter No. 8624, dated September 9, 1956 did not prevent increase of the security at the time of the renewal of the licenses. 6. Mr. Prasad lastly argued that (a) the power of revision under S. 8 (3) of the Act could be exercised by the Board of Revenue only on an application by an aggrieved party, and (b) the proceedings in revision in the instant case were barred by limitation. There is no substance in these contentions. The Board of Revenue may exercise its powers of revision under S. 8 (3) suo motu. No period of limitation is prescribed by the Act for exercise of the power of revision under S. 8 (3). 7. Mr. Prasad drew our attention to paragraph 71, Chap, V of Part III of the Bihar Practice and Procedure Manual, 1958, pp. 99 and 100, which provides that where there is no provision of law as to the period within which an application for revision may be allowed, the application for revision should be preferred within one month of the date of the Commissioners order deducting the time occupied in obtaining a copy of the order, but the Board has a discretion to admit the application for revision preferred after one month. In the instant case, in its order, dated October 4, 1959, the Board stated that it would exercise its powers of revision suo motu. In a case where the Board exercises its power of revision of its own motion, no question of limitation arises. Moreover, the Board held that this was a fit case for interference even after the expiry of the ordinary period of limitation. 8. No other arguments were advanced before us. We see no reason to interfere with the Boards order. The learned Attorney-General raised a preliminary objection as to the maintainability of the appeal on the ground that the Board is not a tribunal within the meaning of Art. 136 of the Constitution. In view of our conclusion that the appellant has no case on the merits, we do not think it necessary to express any opinion on the preliminary objection. 9. | 0[ds]The finality of S. 35 did not attach to these orders and the Board of Revenue had ample power to revise them under S. 8On a true construction of Ss. 38 and 91 of the Act it must be held that the Board, in exercise of its powers under S. 38 read with S. 91, could from time to time issue general directions with regard to the conditions of any license granted under the Act including the amount of the security to be deposited by the license. In exercise of its powers under Ss. 38 and 91, the Board had fixed the security deposit of an Excise shop working under the sliding scale system as equivalent to two months average license fees of the shop. The Board was entitled to direct, as it did by the order dated October 4, 1961, that the general directions issued by it under Ss. 38 and 91 should be observed and carried out by the licensing authority and the proper security in accordance with those directions should be demanded if and when the licenses were next renewedThere is not substance in this contention. In its order dated October 4, 1959, the Board of Revenue exhaustively reviewed all the relevant instructions issued by it from time to time, and rightly pointed out that instruction No. 101 (10) read with the Boards circular letter No. 8624, dated September 9, 1956 did not prevent increase of the security at the time of the renewal of the licensesThere is no substance in these contentions. The Board of Revenue may exercise its powers of revision under S. 8 (3) suo motu. No period of limitation is prescribed by the Act for exercise of the power of revision under S. 8 (3).. Prasad drew our attention to paragraph 71, Chap, V of Part III of the Bihar Practice and Procedure Manual, 1958, pp. 99 and 100, which provides that where there is no provision of law as to the period within which an application for revision may be allowed, the application for revision should be preferred within one month of the date of the Commissioners order deducting the time occupied in obtaining a copy of the order, but the Board has a discretion to admit the application for revision preferred after one month. In the instant case, in its order, dated October 4, 1959, the Board stated that it would exercise its powers of revision suo motu. In a case where the Board exercises its power of revision of its own motion, no question of limitation arises. Moreover, the Board held that this was a fit case for interference even after the expiry of the ordinary period of limitationNo other arguments were advanced before us. We see no reason to interfere with the Boards order. The learned Attorney-General raised a preliminary objection as to the maintainability of the appeal on the ground that the Board is not a tribunal within the meaning of Art. 136 of the Constitution. In view of our conclusion that the appellant has no case on the merits, we do not think it necessary to express any opinion on the preliminary objection | 0 | 2,087 | 580 | ### Instruction:
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appellant to move the Excise Commissioner for reconsideration of his order dated November 14, 1956. On being moved by the appellant under the liberty so granted by the Board of Revenue, the Excise Commissioner by his order dated March 5, 1958 reviewed and set aside his previous order on a consideration of the general directions issued by the Board of Revenue, the Boards order dated March 20, 1957 and the special circumstances of the case. Neither the original order dated November 14, 1956 nor the subsequent order dated March 5, 1958 was passed by the Excise Commissioner under S. 35 on a consideration of the matters referred to in that Section. The finality of S. 35 did not attach to these orders and the Board of Revenue had ample power to revise them under S. 8. 4. Mr. Prasad next referred us to S. 40 of the Act and the standard form of license for the retail vend of country spirit, and contended that only the authority granting the license could fix the amount of the security, and one of the conditions of the license was that the licensee would be required to deposit only the amount so fixed but the Board of revenue by its order dated October 4, 1959 illegally and in excess of its powers altered the amount of the security so fixed and corresponding condition in the license for the deposit of the amount. This argument is based on a misreading of the order of October 4, 1959, and must be rejected. By that order, the Board expressly directed that there would be no change in the amount of the security during the currency of the license. The licenses were due to expire on March 31, 1960. The Board directed that if and when the licenses were renewed with effect from the next licensing year, the proper security should be demanded from the licensee as a condition of the renewal. No exception can be taken to this direction. The licensee had no vested right to a renewal of the license. Section 45 of the Act provides that he shall have no claim to its renewal. The licensing authority was not bound to renew the license. If, in its discretion, it granted a renewal, it could require the licensee to give proper security as a condition of the renewal. On a true construction of Ss. 38 and 91 of the Act it must be held that the Board, in exercise of its powers under S. 38 read with S. 91, could from time to time issue general directions with regard to the conditions of any license granted under the Act including the amount of the security to be deposited by the license. In exercise of its powers under Ss. 38 and 91, the Board had fixed the security deposit of an Excise shop working under the sliding scale system as equivalent to two months average license fees of the shop. The Board was entitled to direct, as it did by the order dated October 4, 1961, that the general directions issued by it under Ss. 38 and 91 should be observed and carried out by the licensing authority and the proper security in accordance with those directions should be demanded if and when the licenses were next renewed. 5. Mr. Prasad next contended that the direction for the increase of the security at the time of the renewal of the licenses is contrary to the instruction No. 101 (10) of the Board of Revenue at p. 39 of Vol. III of the Bihar and Orissa Excise Mannual, 1955 Edn. There is not substance in this contention. In its order dated October 4, 1959, the Board of Revenue exhaustively reviewed all the relevant instructions issued by it from time to time, and rightly pointed out that instruction No. 101 (10) read with the Boards circular letter No. 8624, dated September 9, 1956 did not prevent increase of the security at the time of the renewal of the licenses. 6. Mr. Prasad lastly argued that (a) the power of revision under S. 8 (3) of the Act could be exercised by the Board of Revenue only on an application by an aggrieved party, and (b) the proceedings in revision in the instant case were barred by limitation. There is no substance in these contentions. The Board of Revenue may exercise its powers of revision under S. 8 (3) suo motu. No period of limitation is prescribed by the Act for exercise of the power of revision under S. 8 (3). 7. Mr. Prasad drew our attention to paragraph 71, Chap, V of Part III of the Bihar Practice and Procedure Manual, 1958, pp. 99 and 100, which provides that where there is no provision of law as to the period within which an application for revision may be allowed, the application for revision should be preferred within one month of the date of the Commissioners order deducting the time occupied in obtaining a copy of the order, but the Board has a discretion to admit the application for revision preferred after one month. In the instant case, in its order, dated October 4, 1959, the Board stated that it would exercise its powers of revision suo motu. In a case where the Board exercises its power of revision of its own motion, no question of limitation arises. Moreover, the Board held that this was a fit case for interference even after the expiry of the ordinary period of limitation. 8. No other arguments were advanced before us. We see no reason to interfere with the Boards order. The learned Attorney-General raised a preliminary objection as to the maintainability of the appeal on the ground that the Board is not a tribunal within the meaning of Art. 136 of the Constitution. In view of our conclusion that the appellant has no case on the merits, we do not think it necessary to express any opinion on the preliminary objection. 9.
### Response:
0
### Explanation:
The finality of S. 35 did not attach to these orders and the Board of Revenue had ample power to revise them under S. 8On a true construction of Ss. 38 and 91 of the Act it must be held that the Board, in exercise of its powers under S. 38 read with S. 91, could from time to time issue general directions with regard to the conditions of any license granted under the Act including the amount of the security to be deposited by the license. In exercise of its powers under Ss. 38 and 91, the Board had fixed the security deposit of an Excise shop working under the sliding scale system as equivalent to two months average license fees of the shop. The Board was entitled to direct, as it did by the order dated October 4, 1961, that the general directions issued by it under Ss. 38 and 91 should be observed and carried out by the licensing authority and the proper security in accordance with those directions should be demanded if and when the licenses were next renewedThere is not substance in this contention. In its order dated October 4, 1959, the Board of Revenue exhaustively reviewed all the relevant instructions issued by it from time to time, and rightly pointed out that instruction No. 101 (10) read with the Boards circular letter No. 8624, dated September 9, 1956 did not prevent increase of the security at the time of the renewal of the licensesThere is no substance in these contentions. The Board of Revenue may exercise its powers of revision under S. 8 (3) suo motu. No period of limitation is prescribed by the Act for exercise of the power of revision under S. 8 (3).. Prasad drew our attention to paragraph 71, Chap, V of Part III of the Bihar Practice and Procedure Manual, 1958, pp. 99 and 100, which provides that where there is no provision of law as to the period within which an application for revision may be allowed, the application for revision should be preferred within one month of the date of the Commissioners order deducting the time occupied in obtaining a copy of the order, but the Board has a discretion to admit the application for revision preferred after one month. In the instant case, in its order, dated October 4, 1959, the Board stated that it would exercise its powers of revision suo motu. In a case where the Board exercises its power of revision of its own motion, no question of limitation arises. Moreover, the Board held that this was a fit case for interference even after the expiry of the ordinary period of limitationNo other arguments were advanced before us. We see no reason to interfere with the Boards order. The learned Attorney-General raised a preliminary objection as to the maintainability of the appeal on the ground that the Board is not a tribunal within the meaning of Art. 136 of the Constitution. In view of our conclusion that the appellant has no case on the merits, we do not think it necessary to express any opinion on the preliminary objection
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Kanpur Kapra Committee Syndicate Vs. Commissioner of Sales Tax, U.P | GROVER, J.1. This is an appeal by special leave from the judgment of the Allahabad High Court in a reference made under section 11 of the U.P. Sales Tax Act, 1948, hereinafter called the Act. The High Court answered the following question which was referred in the affirmative and against the assessee :"Whether on the facts and in the circumstances of the case, cloth given by the syndicate to its members on payment was a sale within the meaning of the U.P. Sales Tax Act ?"2. In the year 1944 control was imposed on the import and distribution of cloth by the Government. The assessee which is a syndicate was constituted under the name and style of Kanpur Kapra Committee. It was to act as an importing agency and the cloth was to be distributed by it to the retailers to be sold at controlled rates. The syndicate consisted of 92 wholesalers who fulfilled the condition of having been continuously in business during the years 1940 to 1944. Every quota-holder has to surrender 3 per cent. profit to the syndicate. The syndicate was allowed a margin of 3 per cent. profit in addition to the 3 per cent. margin of profit originally allowed to the importers. The cloth was to pass from the importing agency direct to the retailers who had deposited money with the importing agency and who were entitled to obtain the cloth from specified godown or godowns. In 1948 the control was removed. The syndicate thereafter ceased to function. The members then resolved, inter alia, that cloth would be given to the shareholders according to their contribution at retail prices. The goods had to be removed between February 23, 1948, and March 9, 1948, on payment of the amount noted against each shareholder. If there was any delay in making the payment interest was to be charged at 10 as. per cent. from the defaulters. Cloth was then distributed to the members. The syndicate did not file any return nor did it pay any sales tax on the said turnover. According to the assessee there had been no sale of the cloth to its members or shareholders and the cloth had been merely distributed to them pro rata according to their contribution. The Sales Tax Officer rejected this contention and held that the syndicate had sold the stocks which remained with it at a price at which it would have been sold to the retailers. It was found that the syndicate in the sale invoices issued to its members had charged a profit over and above the price of the cloth in the same manner as any retailer would have been charged. The Judge (Appeals) upheld the order of assessment. The High Court considered the definition of "sale" as given in section 2(h) of the Act and came to the conclusion in view of the following facts that the syndicate had effected sale of cloth. (1) The majority of the transactions were for cash. (2) In the transactions there was no element of compulsion. Cloth was in short supply and if any member did not wish to take his quota it could have been readily disposed of. (3) According to the resolution passed by the members of the syndicate the price which was to be paid was the same at which it was being sold to the retailers. (4) The syndicate and its members were two different entities.The contention which has been pressed before us is that the syndicate and its members or shareholder happened to be one entity. Thus there could be no sale by one entity to itself. This point does not appear to have been agitated before the departmental authorities. Moreover the facts as they appear in the various orders are altogether meagre about the constitution of the syndicate. It is not even clear whether it got itself registered under the Indian Companies Act, 1913. In the absence of proper facts which could be established before the departmental authorities by the assessee the contention that the syndicate and its members constituted one entity cannot be entertained at this stage. On the findings on which the High Court based its conclusion it is not possible to hold that any other answer could have been returned to the question referred.3. | 0[ds]This point does not appear to have been agitated before the departmental authorities. Moreover the facts as they appear in the various orders are altogether meagre about the constitution of the syndicate. It is not even clear whether it got itself registered under the Indian Companies Act, 1913. In the absence of proper facts which could be established before the departmental authorities by the assessee the contention that the syndicate and its members constituted one entity cannot be entertained at this stage. On the findings on which the High Court based its conclusion it is not possible to hold that any other answer could have been returned to the question referred. | 0 | 785 | 122 | ### Instruction:
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GROVER, J.1. This is an appeal by special leave from the judgment of the Allahabad High Court in a reference made under section 11 of the U.P. Sales Tax Act, 1948, hereinafter called the Act. The High Court answered the following question which was referred in the affirmative and against the assessee :"Whether on the facts and in the circumstances of the case, cloth given by the syndicate to its members on payment was a sale within the meaning of the U.P. Sales Tax Act ?"2. In the year 1944 control was imposed on the import and distribution of cloth by the Government. The assessee which is a syndicate was constituted under the name and style of Kanpur Kapra Committee. It was to act as an importing agency and the cloth was to be distributed by it to the retailers to be sold at controlled rates. The syndicate consisted of 92 wholesalers who fulfilled the condition of having been continuously in business during the years 1940 to 1944. Every quota-holder has to surrender 3 per cent. profit to the syndicate. The syndicate was allowed a margin of 3 per cent. profit in addition to the 3 per cent. margin of profit originally allowed to the importers. The cloth was to pass from the importing agency direct to the retailers who had deposited money with the importing agency and who were entitled to obtain the cloth from specified godown or godowns. In 1948 the control was removed. The syndicate thereafter ceased to function. The members then resolved, inter alia, that cloth would be given to the shareholders according to their contribution at retail prices. The goods had to be removed between February 23, 1948, and March 9, 1948, on payment of the amount noted against each shareholder. If there was any delay in making the payment interest was to be charged at 10 as. per cent. from the defaulters. Cloth was then distributed to the members. The syndicate did not file any return nor did it pay any sales tax on the said turnover. According to the assessee there had been no sale of the cloth to its members or shareholders and the cloth had been merely distributed to them pro rata according to their contribution. The Sales Tax Officer rejected this contention and held that the syndicate had sold the stocks which remained with it at a price at which it would have been sold to the retailers. It was found that the syndicate in the sale invoices issued to its members had charged a profit over and above the price of the cloth in the same manner as any retailer would have been charged. The Judge (Appeals) upheld the order of assessment. The High Court considered the definition of "sale" as given in section 2(h) of the Act and came to the conclusion in view of the following facts that the syndicate had effected sale of cloth. (1) The majority of the transactions were for cash. (2) In the transactions there was no element of compulsion. Cloth was in short supply and if any member did not wish to take his quota it could have been readily disposed of. (3) According to the resolution passed by the members of the syndicate the price which was to be paid was the same at which it was being sold to the retailers. (4) The syndicate and its members were two different entities.The contention which has been pressed before us is that the syndicate and its members or shareholder happened to be one entity. Thus there could be no sale by one entity to itself. This point does not appear to have been agitated before the departmental authorities. Moreover the facts as they appear in the various orders are altogether meagre about the constitution of the syndicate. It is not even clear whether it got itself registered under the Indian Companies Act, 1913. In the absence of proper facts which could be established before the departmental authorities by the assessee the contention that the syndicate and its members constituted one entity cannot be entertained at this stage. On the findings on which the High Court based its conclusion it is not possible to hold that any other answer could have been returned to the question referred.3.
### Response:
0
### Explanation:
This point does not appear to have been agitated before the departmental authorities. Moreover the facts as they appear in the various orders are altogether meagre about the constitution of the syndicate. It is not even clear whether it got itself registered under the Indian Companies Act, 1913. In the absence of proper facts which could be established before the departmental authorities by the assessee the contention that the syndicate and its members constituted one entity cannot be entertained at this stage. On the findings on which the High Court based its conclusion it is not possible to hold that any other answer could have been returned to the question referred.
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Chairman & CEO, NOIDA & Another Vs. Mange Ram Sharma (D) Thr. LRs & Another | 1. By this order, we will dispose of the above Interlocutory Application filed on behalf of Dr. G.P. Pathak. The prayer in this application is that this Court should modify para 4 of the directions contained in the order dated 30th July, 2012. While making the above prayer, it is submitted that the New Okhla Industrial Development Authority (NOIDA) has published a policy in furtherance to order of this Court and in clause 3 made a criteria which renders the applicant ineligible for obtaining a second plot under the same scheme. The contention is that under the general schemes floated by the NOIDA, a person is entitled to get two plots and can even take two adjacent plots. Such allotment is required to be made by the authority and there is no restriction. However, the scheme framed under the orders of the Court is placing the applicant at a disadvantageous position. Para 4 of the directions contained in order dated 30th July, 2012 reads as under : “4. The persons who have been allotted lands by the NOIDA previously under any Scheme, would not be eligible to the benefit of the Special Scheme floated by the NOIDA in furtherance of the order of this Court.” Clause 3 of the ‘Special Scheme’ reads as under : “3. The tenderer can Bid for a maximum of 2 (two) plots out of all plots offered in above Scheme. However, in that case net worth of the tenderer should exceed aggregate net worth required for both the plots applied for by the tenderer taken together. In case the two adjoining plots are allotted to any successful bidder, amalgamation of the said two plots shall be permissible.” 2. There is no dispute to the fact that the applicant was running a clinic in the residential area and has to close the same activity in furtherance to the orders of this Court. He would be entitled to apply under the ‘Special Scheme’ formulated by the NOIDA under the order of the Court. The question is as to whether under the ‘Special Scheme’, the applicant can claim two plots? We have no hesitation in answering the said question in the negative. This is a ‘Special Scheme’ floated by NOIDA as per the directions of this Court. It is not a ‘General Scheme’ floated by NOIDA of its own. The terms and conditions applicable under ‘General Scheme’ floated by NOIDA will have such eligibility criteria and terms and conditions that NOIDA in its wisdom finds suitable and in consonance with its policy. Such ‘General Scheme’ may permit grant of double benefit i.e. the party may be a successful bidder even in two plots. To the contrary under the ‘Special Scheme’ no person can be permitted to derive double benefit even if a person was running two clinics or two small nursing homes in the hospital area. He can easily club both such clinics or nursing homes and build a common hospital just by raising additional construction as may be permissible. It is not disputed before us that the applicant has already got a plot for establishing a nursing home and in fact he has already built a nursing home there. We see no reason why he should get double benefit under the court directed ‘Special Scheme’. We do not see any necessity to alter or modify para 4 of the directions contained in the order dated 30th July, 2012. Consequentially, there is also no requirement for modification of clause 3 of the ‘Special Scheme’ floated by the NOIDA which debars a person who has already been given a plot. We do not think that there was any occasion for the NOIDA even to introduce clause 3. In fact, we direct its deletion. Nobody would get two plots under this ‘Special Scheme’. 3. We make it clear that the net worth of a tenderer would be of no consideration for giving such applicant two plots as the plots are being allotted in furtherance of the orders of the Court and, thus, could not be used as an instrument for providing state largesse in a manner not contemplated in terms of the judgment.4. We also make it clear that if, for any reason, the plots declared by NOIDA for construction of nursing homes are not sold under this ‘Special Scheme’, the NOIDA would be free to formulate its general policy for allotment of such plots for nursing homes and the present applicant can apply under that scheme as per the terms and conditions of that policy, if such policy does not put any embargo or restriction upon grant of another plot.5. In view of the above discussion, we | 0[ds]This is a ‘Specialfloated by NOIDA as per the directions of this Court. It is not a ‘Generalfloated by NOIDA of its own. The terms and conditions applicable under ‘Generalfloated by NOIDA will have such eligibility criteria and terms and conditions that NOIDA in its wisdom finds suitable and in consonance with its policy. Such ‘Generalmay permit grant of double benefit i.e. the party may be a successful bidder even in two plots. To the contrary under the ‘Specialno person can be permitted to derive double benefit even if a person was running two clinics or two small nursing homes in the hospital area. He can easily club both such clinics or nursing homes and build a common hospital just by raising additional construction as may be permissible. It is not disputed before us that the applicant has already got a plot for establishing a nursing home and in fact he has already built a nursing home there. We see no reason why he should get double benefit under the court directed ‘SpecialWe do not see any necessity to alter or modify para 4 of the directions contained in the order dated 30th July, 2012. Consequentially, there is also no requirement for modification of clause3 of the ‘SpecialWe make it clear that the net worth of a tenderer would be of no consideration for giving such applicant two plots as the plots are being allotted in furtherance of the orders of the Court and, thus, could not be used as an instrument for providing state largesse in a manner not contemplated in terms of the judgment.4. We also make it clear that if, for any reason, the plots declared by NOIDA for construction of nursing homes are not sold under this ‘Specialthe NOIDA would be free to formulate its general policy for allotment of such plots for nursing homes and the present applicant can apply under that scheme as per the terms and conditions of that policy, if such policy does not put any embargo or restriction upon grant of another plot. | 0 | 864 | 372 | ### Instruction:
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1. By this order, we will dispose of the above Interlocutory Application filed on behalf of Dr. G.P. Pathak. The prayer in this application is that this Court should modify para 4 of the directions contained in the order dated 30th July, 2012. While making the above prayer, it is submitted that the New Okhla Industrial Development Authority (NOIDA) has published a policy in furtherance to order of this Court and in clause 3 made a criteria which renders the applicant ineligible for obtaining a second plot under the same scheme. The contention is that under the general schemes floated by the NOIDA, a person is entitled to get two plots and can even take two adjacent plots. Such allotment is required to be made by the authority and there is no restriction. However, the scheme framed under the orders of the Court is placing the applicant at a disadvantageous position. Para 4 of the directions contained in order dated 30th July, 2012 reads as under : “4. The persons who have been allotted lands by the NOIDA previously under any Scheme, would not be eligible to the benefit of the Special Scheme floated by the NOIDA in furtherance of the order of this Court.” Clause 3 of the ‘Special Scheme’ reads as under : “3. The tenderer can Bid for a maximum of 2 (two) plots out of all plots offered in above Scheme. However, in that case net worth of the tenderer should exceed aggregate net worth required for both the plots applied for by the tenderer taken together. In case the two adjoining plots are allotted to any successful bidder, amalgamation of the said two plots shall be permissible.” 2. There is no dispute to the fact that the applicant was running a clinic in the residential area and has to close the same activity in furtherance to the orders of this Court. He would be entitled to apply under the ‘Special Scheme’ formulated by the NOIDA under the order of the Court. The question is as to whether under the ‘Special Scheme’, the applicant can claim two plots? We have no hesitation in answering the said question in the negative. This is a ‘Special Scheme’ floated by NOIDA as per the directions of this Court. It is not a ‘General Scheme’ floated by NOIDA of its own. The terms and conditions applicable under ‘General Scheme’ floated by NOIDA will have such eligibility criteria and terms and conditions that NOIDA in its wisdom finds suitable and in consonance with its policy. Such ‘General Scheme’ may permit grant of double benefit i.e. the party may be a successful bidder even in two plots. To the contrary under the ‘Special Scheme’ no person can be permitted to derive double benefit even if a person was running two clinics or two small nursing homes in the hospital area. He can easily club both such clinics or nursing homes and build a common hospital just by raising additional construction as may be permissible. It is not disputed before us that the applicant has already got a plot for establishing a nursing home and in fact he has already built a nursing home there. We see no reason why he should get double benefit under the court directed ‘Special Scheme’. We do not see any necessity to alter or modify para 4 of the directions contained in the order dated 30th July, 2012. Consequentially, there is also no requirement for modification of clause 3 of the ‘Special Scheme’ floated by the NOIDA which debars a person who has already been given a plot. We do not think that there was any occasion for the NOIDA even to introduce clause 3. In fact, we direct its deletion. Nobody would get two plots under this ‘Special Scheme’. 3. We make it clear that the net worth of a tenderer would be of no consideration for giving such applicant two plots as the plots are being allotted in furtherance of the orders of the Court and, thus, could not be used as an instrument for providing state largesse in a manner not contemplated in terms of the judgment.4. We also make it clear that if, for any reason, the plots declared by NOIDA for construction of nursing homes are not sold under this ‘Special Scheme’, the NOIDA would be free to formulate its general policy for allotment of such plots for nursing homes and the present applicant can apply under that scheme as per the terms and conditions of that policy, if such policy does not put any embargo or restriction upon grant of another plot.5. In view of the above discussion, we
### Response:
0
### Explanation:
This is a ‘Specialfloated by NOIDA as per the directions of this Court. It is not a ‘Generalfloated by NOIDA of its own. The terms and conditions applicable under ‘Generalfloated by NOIDA will have such eligibility criteria and terms and conditions that NOIDA in its wisdom finds suitable and in consonance with its policy. Such ‘Generalmay permit grant of double benefit i.e. the party may be a successful bidder even in two plots. To the contrary under the ‘Specialno person can be permitted to derive double benefit even if a person was running two clinics or two small nursing homes in the hospital area. He can easily club both such clinics or nursing homes and build a common hospital just by raising additional construction as may be permissible. It is not disputed before us that the applicant has already got a plot for establishing a nursing home and in fact he has already built a nursing home there. We see no reason why he should get double benefit under the court directed ‘SpecialWe do not see any necessity to alter or modify para 4 of the directions contained in the order dated 30th July, 2012. Consequentially, there is also no requirement for modification of clause3 of the ‘SpecialWe make it clear that the net worth of a tenderer would be of no consideration for giving such applicant two plots as the plots are being allotted in furtherance of the orders of the Court and, thus, could not be used as an instrument for providing state largesse in a manner not contemplated in terms of the judgment.4. We also make it clear that if, for any reason, the plots declared by NOIDA for construction of nursing homes are not sold under this ‘Specialthe NOIDA would be free to formulate its general policy for allotment of such plots for nursing homes and the present applicant can apply under that scheme as per the terms and conditions of that policy, if such policy does not put any embargo or restriction upon grant of another plot.
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Kona Prabhakara Rao Versus M. Seshagiri Rao And Another,. (Civil Appeal No. 1321 Of 1979) M. Seshagiri Rao Versus Kona Prabhakara Rao And Another (Civil Appeal No. 2043 Of 1979) Vs. | as required under the law. It was vehemently contended that even on the allegations made by appellant, the Tahsildar concerned was transferred some time in September 1977, long before the elections were notified and the appellant had filed his nomination papers. So far as this part of the matter is concerned, Mr. K. K. Venugopal, counsel appearing for the respondent in Civil Appeal No. 1321 of 1979 and for the appellant in Civil Appeal No. 2043 of 1979 could not support the judgment on this aspect of the matter because the allegations made in the pleadings are absolutely vague and are not accompanied with the necessary particulars required by law. There is absolutely no allegations in the pleadings are absolutely vague and are not accompanied with the necessary particulars required by law. There is absolutely no allegations in the pleadings to show that at any time after having filed his nomination papers, the appellant made any efforts to seek the assistance of Tahsildar Narasimha Rao in furthering his election prospects or in any way helping him to win the election. In this view of the matter, we are satisfied that the election petitioner failed to prove the allegations of corrupt practice alleged against the appellant. The finding of the High court on this point cannot be sustained. 4. As regards the other question namely as to whether or not the appellant was holding an office of profit under the Government, Mr. Venugopal appearing for the respondent, in view of the long course of decisions of this Court, [contended] that the evidence clearly shows-that the appellant was holding an office under the Government having been appointed by the Government. In this connection, reliance was placed by Mr. Venugopal on the order of the Government at page 40 of Paper-book No. II, the relevant part of which may be extracted thus : Consequent on the expiry of the terms of office of the Board of Directors of the Travel and Tourism Corporation [Andhra Pradesh] Private Limited on March 29, 1977, the Government reconstituted the Board with the following members for a period of two years from the date of this order : 1. Sri. Kona Prabhakar Rao M. L. A. Part-time Chairman. 5. It was submitted that in view of this order of the Government, it must be held that the appellant was appointed by the Government and therefore he held an office under the Government when he filed his nomination papers. 6. On the other hand Mr. Rao, learned counsel for the appellant pointed out that to being with the appellant was merely a part-time Chairman of the Travel and Tourism Corporation [Andhra Pradesh] Private Limited. The counsel has drawn our attention to the Article of Association and particularly to Article 60 [a] which runs thus : 60. [a] The Andhra Pradesh State Road Transport Corporation may from time to time appoint a part-time Chairman, vice-Chairman of the board of Directors on such terms and conditions and on such remuneration as may deem fit. 7. A perusal of this paragraph of the Article shows that the appointment of a part-time Chairman rests not with the Government but with the Corporation. Acting in pursuance of this provision, the Corporation by can order dated October 11, 1977, long before the order passed by the Government had appointed the appellant as part-time Chairman. This order runs thus :Corporation resolved that the following be and hereby appointed at part-time Chairman and Directors to serve on the Board of Travel and Tourism Corporation [A. P.] Private Limited in pursuance of Articles 60 [a] and 60 [b] of Memorandum and Articles of Association of the Company, as the nominees of the A. P. S. R. T. C. from the date of this Resolution for a period of two years. 8. Of course, under article 62, the remuneration or compensatory allowances of the Directors could be determined both by the Corporation and the state Government. But this Article does not confer any power on the Government either to appoint or to remove the part-time Chairman. In this case however we find that the remuneration of the appellant or compensatory allowance whatever it may be called seems to have been fixed by the corporation itself in the exercise of its powers under article 60 [a] of Articles of Association. 9. The question as to what are the ingredients of a person holding an office of profit under the government is no longer res integra as the same is concluded by a catena of decisions of this Court. In the case of Gurugobinda Basu v. Sankari Prasad Ghosal, this Court pointed out that one of the dominant tests to determine this question would be to find out as to who was the appointing an removing authority of the officer concerned. After reviewing some decisions, this Court observed as follows : It is clear from the aforesaid observations that is Maulana Abdul Shakur case the factors which were held to be decisive were [a] the power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion, and [b] payment from out of Government revenues, though it was pointed out that payment from a source other than Government revenues was not always a decisive factor.......To the same effect, is another decision of this Court in the case of D. R. Gurushantappa v. Abdul Khuddus Anwar. We do not consider it necessary to multiply authorities on this point. 10. In view of these decisions, it is absolutely clear that as the appellant was neither appointed nor was removable by Government and even his compensatory allowances were paid from the funds of the Corporation and not from the coffers of the Government, he cannot be said to be a person holding any office of profit under the Government. For these reasons, the view taken by the High Court on this aspect of the question is also legally erroneous. | 1[ds]3. So far as Civil Appeal No. 1321 of 1979 is concerned, after hearing counsel for the parties, we are satisfied that the judgment of the High Court cannot be sustainedIn this view of the matter, we are satisfied that the election petitioner failed to prove the allegations of corrupt practice alleged against the appellant. The finding of the High court on this point cannot be sustained7. A perusal of this paragraph of the Article shows that the appointment of ae Chairman rests not with the Government but with the Corporation. Acting in pursuance of this provision, the Corporation by can order dated October 11, 1977, long before the order passed by the Government had appointed the appellant ase Chairman. This order runs thus :Corporation resolved that the following be and hereby appointed ate Chairman and Directors to serve on the Board of Travel and Tourism Corporation [A. P.] Private Limited in pursuance of Articles 60 [a] and 60 [b] of Memorandum and Articles of Association of the Company, as the nominees of the A. P. S. R. T. C. from the date of this Resolution for a period of two years10. In view of these decisions, it is absolutely clear that as the appellant was neither appointed nor was removable by Government and even his compensatory allowances were paid from the funds of the Corporation and not from the coffers of the Government, he cannot be said to be a person holding any office of profit under the Government. For these reasons, the view taken by the High Court on this aspect of the question is also legally erroneous. For these reasons, therefore, we allow Civil Appeal No. 1321 of 1979 and set aside the judgment of the High Court voiding the election of the appellant. As a material consequence of allowing the appeal, the appellant will continue to remain a member of the Legislative Assembly of the State of Andhra Pradesh subject of course to the result of Civil Appeal No. 2043 of 197911. As regards Civil Appeal No. 2043 of 1979, the counsel for both the parties have expressed their join consent that in view of the allegations made by the appellant, theg may be done in this Court instead of remitting the matter to the High Court which will involve lot of delay. In view of the consent given by the parties, without going into the question whether or not a prima facie case has been made for a, we shall proceed on the footing that both the parties agree to theg to be done under orders of this Court12. Theg will be done by the Registrar from 11 a.m. to 4 p.m. and should be completed as far as practicable in two days. In case it is not finished in two days, it can be continued on the third day. Theg will be done in the presence of the parties and their counsel. Parties have further agreed before us that the report of the Registrar regarding the result of therecountshall be binding on the parties without any further argument and the appeal should be decided in accordance with the order passed by this Court on the basis of the report of the Registrar. The Registrar [Judicial] will exercise all powers of the Returning Officer in. We might hasten to add that one of the primary considerations which weighed with us in allowing the prayer forrecountwas the agreement of both the parties to abide by the decision of the Registrar13. The ballot papers which are kept in steel trunks may be called for from the High Court which may be directed to send the same through a special messenger as expeditiously as possible at the cost of the appellant of civil Appeal No. of 1979 [election petitioner]14. The Registrar shall notify the date ofg as soon as the steel boxes are received, and after completing the task, submit his report to this Court after which the parties will be informed of the date and the case will be put up before us for final orders;. | 1 | 1,565 | 744 | ### 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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as required under the law. It was vehemently contended that even on the allegations made by appellant, the Tahsildar concerned was transferred some time in September 1977, long before the elections were notified and the appellant had filed his nomination papers. So far as this part of the matter is concerned, Mr. K. K. Venugopal, counsel appearing for the respondent in Civil Appeal No. 1321 of 1979 and for the appellant in Civil Appeal No. 2043 of 1979 could not support the judgment on this aspect of the matter because the allegations made in the pleadings are absolutely vague and are not accompanied with the necessary particulars required by law. There is absolutely no allegations in the pleadings are absolutely vague and are not accompanied with the necessary particulars required by law. There is absolutely no allegations in the pleadings to show that at any time after having filed his nomination papers, the appellant made any efforts to seek the assistance of Tahsildar Narasimha Rao in furthering his election prospects or in any way helping him to win the election. In this view of the matter, we are satisfied that the election petitioner failed to prove the allegations of corrupt practice alleged against the appellant. The finding of the High court on this point cannot be sustained. 4. As regards the other question namely as to whether or not the appellant was holding an office of profit under the Government, Mr. Venugopal appearing for the respondent, in view of the long course of decisions of this Court, [contended] that the evidence clearly shows-that the appellant was holding an office under the Government having been appointed by the Government. In this connection, reliance was placed by Mr. Venugopal on the order of the Government at page 40 of Paper-book No. II, the relevant part of which may be extracted thus : Consequent on the expiry of the terms of office of the Board of Directors of the Travel and Tourism Corporation [Andhra Pradesh] Private Limited on March 29, 1977, the Government reconstituted the Board with the following members for a period of two years from the date of this order : 1. Sri. Kona Prabhakar Rao M. L. A. Part-time Chairman. 5. It was submitted that in view of this order of the Government, it must be held that the appellant was appointed by the Government and therefore he held an office under the Government when he filed his nomination papers. 6. On the other hand Mr. Rao, learned counsel for the appellant pointed out that to being with the appellant was merely a part-time Chairman of the Travel and Tourism Corporation [Andhra Pradesh] Private Limited. The counsel has drawn our attention to the Article of Association and particularly to Article 60 [a] which runs thus : 60. [a] The Andhra Pradesh State Road Transport Corporation may from time to time appoint a part-time Chairman, vice-Chairman of the board of Directors on such terms and conditions and on such remuneration as may deem fit. 7. A perusal of this paragraph of the Article shows that the appointment of a part-time Chairman rests not with the Government but with the Corporation. Acting in pursuance of this provision, the Corporation by can order dated October 11, 1977, long before the order passed by the Government had appointed the appellant as part-time Chairman. This order runs thus :Corporation resolved that the following be and hereby appointed at part-time Chairman and Directors to serve on the Board of Travel and Tourism Corporation [A. P.] Private Limited in pursuance of Articles 60 [a] and 60 [b] of Memorandum and Articles of Association of the Company, as the nominees of the A. P. S. R. T. C. from the date of this Resolution for a period of two years. 8. Of course, under article 62, the remuneration or compensatory allowances of the Directors could be determined both by the Corporation and the state Government. But this Article does not confer any power on the Government either to appoint or to remove the part-time Chairman. In this case however we find that the remuneration of the appellant or compensatory allowance whatever it may be called seems to have been fixed by the corporation itself in the exercise of its powers under article 60 [a] of Articles of Association. 9. The question as to what are the ingredients of a person holding an office of profit under the government is no longer res integra as the same is concluded by a catena of decisions of this Court. In the case of Gurugobinda Basu v. Sankari Prasad Ghosal, this Court pointed out that one of the dominant tests to determine this question would be to find out as to who was the appointing an removing authority of the officer concerned. After reviewing some decisions, this Court observed as follows : It is clear from the aforesaid observations that is Maulana Abdul Shakur case the factors which were held to be decisive were [a] the power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion, and [b] payment from out of Government revenues, though it was pointed out that payment from a source other than Government revenues was not always a decisive factor.......To the same effect, is another decision of this Court in the case of D. R. Gurushantappa v. Abdul Khuddus Anwar. We do not consider it necessary to multiply authorities on this point. 10. In view of these decisions, it is absolutely clear that as the appellant was neither appointed nor was removable by Government and even his compensatory allowances were paid from the funds of the Corporation and not from the coffers of the Government, he cannot be said to be a person holding any office of profit under the Government. For these reasons, the view taken by the High Court on this aspect of the question is also legally erroneous.
### Response:
1
### Explanation:
3. So far as Civil Appeal No. 1321 of 1979 is concerned, after hearing counsel for the parties, we are satisfied that the judgment of the High Court cannot be sustainedIn this view of the matter, we are satisfied that the election petitioner failed to prove the allegations of corrupt practice alleged against the appellant. The finding of the High court on this point cannot be sustained7. A perusal of this paragraph of the Article shows that the appointment of ae Chairman rests not with the Government but with the Corporation. Acting in pursuance of this provision, the Corporation by can order dated October 11, 1977, long before the order passed by the Government had appointed the appellant ase Chairman. This order runs thus :Corporation resolved that the following be and hereby appointed ate Chairman and Directors to serve on the Board of Travel and Tourism Corporation [A. P.] Private Limited in pursuance of Articles 60 [a] and 60 [b] of Memorandum and Articles of Association of the Company, as the nominees of the A. P. S. R. T. C. from the date of this Resolution for a period of two years10. In view of these decisions, it is absolutely clear that as the appellant was neither appointed nor was removable by Government and even his compensatory allowances were paid from the funds of the Corporation and not from the coffers of the Government, he cannot be said to be a person holding any office of profit under the Government. For these reasons, the view taken by the High Court on this aspect of the question is also legally erroneous. For these reasons, therefore, we allow Civil Appeal No. 1321 of 1979 and set aside the judgment of the High Court voiding the election of the appellant. As a material consequence of allowing the appeal, the appellant will continue to remain a member of the Legislative Assembly of the State of Andhra Pradesh subject of course to the result of Civil Appeal No. 2043 of 197911. As regards Civil Appeal No. 2043 of 1979, the counsel for both the parties have expressed their join consent that in view of the allegations made by the appellant, theg may be done in this Court instead of remitting the matter to the High Court which will involve lot of delay. In view of the consent given by the parties, without going into the question whether or not a prima facie case has been made for a, we shall proceed on the footing that both the parties agree to theg to be done under orders of this Court12. Theg will be done by the Registrar from 11 a.m. to 4 p.m. and should be completed as far as practicable in two days. In case it is not finished in two days, it can be continued on the third day. Theg will be done in the presence of the parties and their counsel. Parties have further agreed before us that the report of the Registrar regarding the result of therecountshall be binding on the parties without any further argument and the appeal should be decided in accordance with the order passed by this Court on the basis of the report of the Registrar. The Registrar [Judicial] will exercise all powers of the Returning Officer in. We might hasten to add that one of the primary considerations which weighed with us in allowing the prayer forrecountwas the agreement of both the parties to abide by the decision of the Registrar13. The ballot papers which are kept in steel trunks may be called for from the High Court which may be directed to send the same through a special messenger as expeditiously as possible at the cost of the appellant of civil Appeal No. of 1979 [election petitioner]14. The Registrar shall notify the date ofg as soon as the steel boxes are received, and after completing the task, submit his report to this Court after which the parties will be informed of the date and the case will be put up before us for final orders;.
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VISHWABANDHU Vs. SRI KRISHNA AND ANR | is totally false, frivolous and baseless. That no evidence is produced to deny the report of the process server dated 04.04.2000 in which he stated that on 02.04.2000 the summons was duly served on applicant, nor the said report is to be manipulated. 11. Respondent No.1, being aggrieved, filed FAFO No. 2473 of 2005 in the High Court challenging the order dated 05.07.2005. During the pendency of said FAFO, sale certificate was issued in favour of the Appellant on 30.03.2006 by virtue of order dated 10.01.2006 passed by the concerned court in Execution No.4 of 1998. 12. On 21.04.2006 FAFO No. 2473 of 2005 was allowed by the High Court with following observations:- In the instant case, the appellant appears not to be vigilant as he ought to have been, yet the conduct does not on the whole warrant to castigate him as an irresponsible litigant. Further, the inconvenience caused to the plaintiff respondent on account of the absence of appellant may be compensated by warding appropriate cost. In the interest of justice and under the peculiar circumstances of the case, I set aside the impugned judgment and decree. In the result of this appeal is allowed with the costs of Rs.1000/-. The trial court is directed to decide the case on merits after affording opportunities to the parties. 13. Thereafter, Respondent No.2 filed CMRA No. 107616 of 2009 seeking recall inter alia on the ground that Respondent No.1 had full knowledge of the proceedings since 17.02.1997 and had intentionally and deliberately avoided to appear and contest the matter. The application was, however, dismissed by the High Court by its order dated 18.10.2019 observing that after the order dated 21.04.2006 passed by the High Court, the Suit was restored to the file and the issues were already framed. 14. These two orders dated 21.04.2006 and 18.10.2019 are presently under challenge. 15. While issuing notice in the instant appeals, by Order dated 20.02.2020 passed by this Court, further proceedings were stayed. 16. We heard Mr. Gopal Sankaranarayanan, learned Senior Advocate for the appellant and Mr. Pradeep Kumar Yadav, learned Advocate for Respondent No.1. 17. It was submitted by Mr. Sankaranarayanan, learned Senior Advocate that Respondent No.1 was always aware of the proceedings and had deliberately avoided to appear and contest the matter; that his stand in the application under Order IX Rule 13 of the Code itself indicated that he was ready to execute sale deed in favour of the original plaintiff and that he had no money to repay the amount received by him way of part consideration. It was submitted that as an auction purchaser the Appellant had complied with all the legal requirements and sale certificate was also issued in his favour. 18. On the other hand, Mr. Pradeep Kumar Yadav, learned Advocate submitted that the orders passed by the High Court did not call for any interference and that the Suit having been restored to the file, the matter be allowed to be taken to the logical conclusion. 19. The summons issued by registered post was received back with postal endorsement of refusal, as would be clear from the order dated 19.02.1997. Sub-Rule (5) of Order V Rule 9 of the Code states inter alia that if the defendant or his agent had refused to take delivery of the postal article containing the summons, the court issuing the summons shall declare that the summons had been duly served on the defendant. The order dated 19.02.1997 was thus completely in conformity with the legal requirements. In a slightly different context, while considering the effect of Section 27 of the General Clauses Act, 1897, a Bench of three Judges of this Court in C.C. Alavi Haji vs. Palapetty Muhammed and Anr AIR 2007 SC (Supp) 1705 made following observations:- 14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement refused or not available in the house or house locked or shop closed or addressee not in station, due service has to be presumed. [Vide Jagdish Singh v. Natthu Singh AIR 1992 SC 1604 : State of M.P. vs. Hiralal & Ors. (1996) 7 SCC 523 and V. Raja Kumari vs. P. Subbarama Naidu & Anr. (2004) 8 SCC 774 ]. … …. 20. Even after the passing of the ex-parte decree, the report filed by the process server on 04.04.2000 clearly indicated that notice was served upon Respondent No.1 which was duly acknowledged by him by putting signature on the copy of the notice. Despite such knowledge, Respondent No.1 allowed the property to be put to auction in the month of December, 2000. It was only after the auction was so undertaken, that he preferred the application under Order IX Rule 13 of the Code. The High Court, therefore, rightly observed in its order dated 21.04.2006 that Respondent No.1 was not vigilant. Yet, the High Court proceeded to grant relief in favour of Respondent No.1. 21. In the light of the features indicated above and the fact that the auction was allowed to be undertaken, Respondent No. 1 was disentitled from claiming any relief as was prayed for. Further, after completion of proceedings in auction, sale certificate was also issued in favour of the Appellant. | 1[ds]19. The summons issued by registered post was received back with postal endorsement of refusal, as would be clear from the order dated 19.02.1997. Sub-Rule (5) of Order V Rule 9 of the Code states inter alia that if the defendant or his agent had refused to take delivery of the postal article containing the summons, the court issuing the summons shall declare that the summons had been duly served on the defendant. The order dated 19.02.1997 was thus completely in conformity with the legal requirements. In a slightly different context, while considering the effect of Section 27 of the General Clauses Act, 1897, a Bench of three Judges of this Court in C.C. Alavi Haji vs. Palapetty Muhammed and Anr AIR 2007 SC (Supp) 1705 made following observations:-14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement refused or not available in the house or house locked or shop closed or addressee not in station, due service has to be presumed. [Vide Jagdish Singh v. Natthu Singh AIR 1992 SC 1604 : State of M.P. vs. Hiralal & Ors. (1996) 7 SCC 523 and V. Raja Kumari vs. P. Subbarama Naidu & Anr. (2004) 8 SCC 774 ]. … ….20. Even after the passing of the ex-parte decree, the report filed by the process server on 04.04.2000 clearly indicated that notice was served upon Respondent No.1 which was duly acknowledged by him by putting signature on the copy of the notice. Despite such knowledge, Respondent No.1 allowed the property to be put to auction in the month of December, 2000. It was only after the auction was so undertaken, that he preferred the application under Order IX Rule 13 of the Code. The High Court, therefore, rightly observed in its order dated 21.04.2006 that Respondent No.1 was not vigilant. Yet, the High Court proceeded to grant relief in favour of Respondent No.1.21. In the light of the features indicated above and the fact that the auction was allowed to be undertaken, Respondent No. 1 was disentitled from claiming any relief as was prayed for. Further, after completion of proceedings in auction, sale certificate was also issued in favour of the Appellant. | 1 | 2,084 | 554 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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is totally false, frivolous and baseless. That no evidence is produced to deny the report of the process server dated 04.04.2000 in which he stated that on 02.04.2000 the summons was duly served on applicant, nor the said report is to be manipulated. 11. Respondent No.1, being aggrieved, filed FAFO No. 2473 of 2005 in the High Court challenging the order dated 05.07.2005. During the pendency of said FAFO, sale certificate was issued in favour of the Appellant on 30.03.2006 by virtue of order dated 10.01.2006 passed by the concerned court in Execution No.4 of 1998. 12. On 21.04.2006 FAFO No. 2473 of 2005 was allowed by the High Court with following observations:- In the instant case, the appellant appears not to be vigilant as he ought to have been, yet the conduct does not on the whole warrant to castigate him as an irresponsible litigant. Further, the inconvenience caused to the plaintiff respondent on account of the absence of appellant may be compensated by warding appropriate cost. In the interest of justice and under the peculiar circumstances of the case, I set aside the impugned judgment and decree. In the result of this appeal is allowed with the costs of Rs.1000/-. The trial court is directed to decide the case on merits after affording opportunities to the parties. 13. Thereafter, Respondent No.2 filed CMRA No. 107616 of 2009 seeking recall inter alia on the ground that Respondent No.1 had full knowledge of the proceedings since 17.02.1997 and had intentionally and deliberately avoided to appear and contest the matter. The application was, however, dismissed by the High Court by its order dated 18.10.2019 observing that after the order dated 21.04.2006 passed by the High Court, the Suit was restored to the file and the issues were already framed. 14. These two orders dated 21.04.2006 and 18.10.2019 are presently under challenge. 15. While issuing notice in the instant appeals, by Order dated 20.02.2020 passed by this Court, further proceedings were stayed. 16. We heard Mr. Gopal Sankaranarayanan, learned Senior Advocate for the appellant and Mr. Pradeep Kumar Yadav, learned Advocate for Respondent No.1. 17. It was submitted by Mr. Sankaranarayanan, learned Senior Advocate that Respondent No.1 was always aware of the proceedings and had deliberately avoided to appear and contest the matter; that his stand in the application under Order IX Rule 13 of the Code itself indicated that he was ready to execute sale deed in favour of the original plaintiff and that he had no money to repay the amount received by him way of part consideration. It was submitted that as an auction purchaser the Appellant had complied with all the legal requirements and sale certificate was also issued in his favour. 18. On the other hand, Mr. Pradeep Kumar Yadav, learned Advocate submitted that the orders passed by the High Court did not call for any interference and that the Suit having been restored to the file, the matter be allowed to be taken to the logical conclusion. 19. The summons issued by registered post was received back with postal endorsement of refusal, as would be clear from the order dated 19.02.1997. Sub-Rule (5) of Order V Rule 9 of the Code states inter alia that if the defendant or his agent had refused to take delivery of the postal article containing the summons, the court issuing the summons shall declare that the summons had been duly served on the defendant. The order dated 19.02.1997 was thus completely in conformity with the legal requirements. In a slightly different context, while considering the effect of Section 27 of the General Clauses Act, 1897, a Bench of three Judges of this Court in C.C. Alavi Haji vs. Palapetty Muhammed and Anr AIR 2007 SC (Supp) 1705 made following observations:- 14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement refused or not available in the house or house locked or shop closed or addressee not in station, due service has to be presumed. [Vide Jagdish Singh v. Natthu Singh AIR 1992 SC 1604 : State of M.P. vs. Hiralal & Ors. (1996) 7 SCC 523 and V. Raja Kumari vs. P. Subbarama Naidu & Anr. (2004) 8 SCC 774 ]. … …. 20. Even after the passing of the ex-parte decree, the report filed by the process server on 04.04.2000 clearly indicated that notice was served upon Respondent No.1 which was duly acknowledged by him by putting signature on the copy of the notice. Despite such knowledge, Respondent No.1 allowed the property to be put to auction in the month of December, 2000. It was only after the auction was so undertaken, that he preferred the application under Order IX Rule 13 of the Code. The High Court, therefore, rightly observed in its order dated 21.04.2006 that Respondent No.1 was not vigilant. Yet, the High Court proceeded to grant relief in favour of Respondent No.1. 21. In the light of the features indicated above and the fact that the auction was allowed to be undertaken, Respondent No. 1 was disentitled from claiming any relief as was prayed for. Further, after completion of proceedings in auction, sale certificate was also issued in favour of the Appellant.
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1
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19. The summons issued by registered post was received back with postal endorsement of refusal, as would be clear from the order dated 19.02.1997. Sub-Rule (5) of Order V Rule 9 of the Code states inter alia that if the defendant or his agent had refused to take delivery of the postal article containing the summons, the court issuing the summons shall declare that the summons had been duly served on the defendant. The order dated 19.02.1997 was thus completely in conformity with the legal requirements. In a slightly different context, while considering the effect of Section 27 of the General Clauses Act, 1897, a Bench of three Judges of this Court in C.C. Alavi Haji vs. Palapetty Muhammed and Anr AIR 2007 SC (Supp) 1705 made following observations:-14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement refused or not available in the house or house locked or shop closed or addressee not in station, due service has to be presumed. [Vide Jagdish Singh v. Natthu Singh AIR 1992 SC 1604 : State of M.P. vs. Hiralal & Ors. (1996) 7 SCC 523 and V. Raja Kumari vs. P. Subbarama Naidu & Anr. (2004) 8 SCC 774 ]. … ….20. Even after the passing of the ex-parte decree, the report filed by the process server on 04.04.2000 clearly indicated that notice was served upon Respondent No.1 which was duly acknowledged by him by putting signature on the copy of the notice. Despite such knowledge, Respondent No.1 allowed the property to be put to auction in the month of December, 2000. It was only after the auction was so undertaken, that he preferred the application under Order IX Rule 13 of the Code. The High Court, therefore, rightly observed in its order dated 21.04.2006 that Respondent No.1 was not vigilant. Yet, the High Court proceeded to grant relief in favour of Respondent No.1.21. In the light of the features indicated above and the fact that the auction was allowed to be undertaken, Respondent No. 1 was disentitled from claiming any relief as was prayed for. Further, after completion of proceedings in auction, sale certificate was also issued in favour of the Appellant.
|
The Daily Partap Vs. Regional Provident Fund Commissioner, Punjab | Co. (India) Ltd v. Union of India case (supra) or in Jay Engineering Works Ltd & Ors. v. The Union of India & Ors. case (supra).14. In this connection, we may now usefully refer to the Constitution Bench judgment in M/s Titaghur Paper Mills Co. Ltd. v. Its Workmen case (supra), wherein an earlier Constitution Bench speaking though Wanchoo, J., had occasion to consider the legal connotation of a Production Bonus scheme as distinct from profit bonus scheme. The scheme which fell for consideration of the Constitution Bench in the said case was one floated by the company wherein up to the production 36,000 tons, there was a uniform rate of bonus payable by the company for giving appropriate remuneration to the workmen for producing that much quantity of goods but the scheme did not provide for production bonus for production above 36,000 tons, as there was no agreement between the Management and the Union in this respect. The question before the Industrial Tribunal from whose decision appeal came to this court was whether the workmen were entitled to be given further benefit of production incentive scheme if by their joint efforts production of the company went beyond 36,000 tons and whether it was necessary to provide for Production Bonus beyond this limit. The Tribunal, in that case while giving clearance to such a scheme, gave two reasons for increase in the rates of payment of Production Bonus: (i) the intensification of the efforts of the workmen in increasing production, and (ii) the progressive going down of the labour cost of production per ton as production increased. The rates had to be increased progressively with production. Consequently, for each 460 tons increase in production the proper rates for payment of Production Bonus would be 1-1/4, 1, 1-3/4 and 2 days basic wages respectively or production between 36,000 and 42,000 tons, 42,000 and 48,000 tons, 48,000 and 54,000 tons and 54,000 and 60,000 tons. It is this additional Production Bonus scheme ordered by the Tribunal which was examined by this Court in the said decision. While upholding the said modification in the bonus scheme of the company, this court held that this was not a profit bonus scheme but was a genuine production incentive bonus scheme as the Production Bonus to be paid to the workmen was directly linked with the extra output furnished by them by their own efforts beyond the requisite norms of output. It was held that the scheme before them was nothing more or less than Production Bonus scheme on the basis of tonnage of production. The aforesaid decision of the Constitution Bench wherein Wanchoo, J., spoke for the Bench, was pressed in service by the same learned Judge speaking for the latter Constitution Bench while considering Section 2(b) of this very Act in Bridge & Roof Co. (India) Ltd v. Union of India case (supra) as seen earlier.15. It, therefore, becomes clear that in order to become a genuine Production Bonus scheme so as to get covered by exception (ii) to the definition of "basic wages" as found under Section 2(b) of the Act, it must be shown that the scheme in question seeks to offer production bonus to the workmen concerned who put in extra output wherein either collectively bonus be fixed to all of them on the basis of total extra output on a sliding scale or may be paid individually to a given number of workmen who by their own efforts earn such bonus. Thus in each case payment of bonus cannot be of a fixed or proven nature having no nexus with the quantity of extra output produced by them. As in the present case the scheme relied on by the appellants does not fulfil this legal test, it does not attract the exception (ii) to Section 2(b). It remains in the realm of basic extra wage. The decision rendered by learned Single Judge of the High Court as confirmed by the Division Bench decision, cannot, therefore be found fault with. The submission of learned counsel for the appellants that in the scheme in question there was no compulsion for the workman to put in extra work and the management could not compel him to do extra work nor can it allege any misconduct on the part of such workman who does not want to do excess work cannot be of any avail to the learned counsel for the appellants as even if this criteria may be common to the present scheme as well as the genuine Production Bonus scheme, the further requirement of the scheme to become a genuine Production Bonus scheme, namely, that the payment by way of bonus to the concerned eligible workman should vary in proportion to the extra output put up by him beyond the norm of output prescribed for him, is conspicuously absent in the present scheme, as seen earlier, and on the other hand, this requirement which is the very heart of a genuine Production Bonus scheme is missing in the present scheme and therefore, similarity on only one aspect between the genuine production incentive scheme and the present scheme, namely, that the workman could not have been compelled to carry out extra work pales into insignificance on the facts of the present case. Therefore, the second question has to be answered against the appellants and in favour of the respondent. Point No. 3: 16. While granting special leave to appeal in this case, by an order dated 9th May, 1988, this court had stayed the recovery of the amounts of the Employees Provident Fund contribution for the past period, subject to furnishing a bank guarantee for payment of that sum. But no stay of recovery of future contribution was granted. As the appeals fail, the bank guarantee if furnished by the appellants, will be available for being encashed by the respondents towards the liability of the appellants for the contributions for the past period which had remained stayed by order of this court. 17. | 0[ds]7. As noted earlier, it is true that when the appellants in the first instance filed writ petitions in the High Court, it was contended by them that the Production Bonus amounts paid by them to their workmen were not part of the "basic wages" as defined under Section 2(b) of the Act. It is also true that they contended before the High Court in those proceedings that under some mistake of law they had already deposited provident fund of the employees with respect to Production Bonus also. That they were entitled to appropriate refund of the said amount. It is equally true that when such a contention was raised by them, the learned Advocate General, Haryana, who appeared at that stage on behalf of the respondent authorities, conceded that the appellants were not required to deposit provident fund on the Production Bonus and they may deposit provident fund only on the "wages" as defined in the Act from August, 1975 and that for appropriate refund they may apply to the respondent who will give them hearing and decide the matter. Learned Advocate General also assured that the appellants will have to pay refund of the provident fund to the employees to the extent that such amounts were deducted from the salaries of the employees covered by the Production Bonus scheme. The said assurance of the learned Advocate General was accepted by the learned counsel for the appellants and that is how the appellants moved an application for refund before the authorities.8. However, it has to be kept in view that the Advocate Generals concession was on a question of law as to whether the Scheme which was put forward by the appellants as Production Bonus Scheme was covered by Section 6 read with Section 2(b) or not. Such a concession on the question of law cannot bind the authorities for all time to come but even apart from this aspect of the matter the said concession has to be considered as a whole. In the same breath while conceding that the appellants were not required to contribute on Production Bonus amounts, the learned Advocate General made it clear that they have to deposit provident fund on the "wages" as defined under the Act meaning thereby the question whether the disputed amounts for which refund was to be claimed by the appellants from the authorities fell within the definition of "wages" under the Act or not. It was a live issue which had to be decided by the authorities in proposed refund applications. Learned Advocate General had not given an absolute concession that the appellants were not liable to contribute any part of the disputed amount towards provident fund and that it never fell within the definition of the word "wages". Under these circumstances, when the applications for refund were moved by the appellants they were required to be decided on their own merits. The statement of the learned Advocate General before the High Court had no adverse effect on such a statutory jurisdiction of the authorities. The merits of refund applications had to be decided by the authorities after hearing the appellants. The entire question whether the claim for refund was justified in law or not and the further connected question whether the amounts deposited were towards "basic wages" or otherwise were open for consideration of the authorities. It cannot be said that such an inquiry was not open to the authorities and was clearly shut out by the order of the High Court dated 19th July, 1976 recording the concession of the learned Advocate General. The first point, therefore, is answered against the appellants and in favour of the respondentis not in dispute between the parties that the appellants establishments are governed by the Act. In fact learned counsel for the appellants stated that they are remitting requisite contributions under Section 6 so far as the amounts of "basic wages" paid by them to their employees are concerned and equally matching contributions from the employees are also deducted from their wages and remitted to the authorities under the Act. It is obvious that these contributions form part of the fund and the provident fund accounts of the workmen maintained by the authorities under the scheme are credited with these amounts from time to time. These funded amounts would be available to the workmen for their requirements as withdrawals can be made from the workers credit balances in the fund as envisaged by the Act. However, Shri Ranjit Kumars grievance is a limited one, namely, that the appellants are not liable to contribute with reference to the amounts which are paid to the workmen which are not "basic wages". It was submitted that under Section 6 of the Act, only three types of contributions are required to be effected by the employer along with the corresponding matching contributions by the employees as requisite percentage of the amounts; i) basic wages, ii) dearness allowance, and iii) retaining allowance, if any, paid to the workmen by the employers. It was contended that undisputably the amounts in question were not paid to the workmen by way of dearness allowance and "retaining allowance" as laid down by Explanation 2 to Section 6 of the Act. It means "an allowance payable for the time being to an employee of any factory or other establishment during any period in which the establishment is not working for retaining his services". Therefore, according to him unless disputed amounts are part of "basic wages" they cannot be made subject matter of contributions.Therefore, the short question is whether the disputed amounts paid to the workmen employed by the appellants during the relevant time were paid by way of Production Bonus or not. An incidental question will also arise namely, whether in any case the said amount can be said to be covered by the latter part of the exception category (ii) of the definition Section 2(b) being similar allowance payable to the employee in respect of his employment or the work done in such employment. It was submitted that in any case this allowance was paid for the extra work by way of incentive. The aforesaid contention of learned counsel for the appellants will have to be examined in the light of the Production Bonus Scheme in question which has been the sheet-anchor of the appellants case for getting out of the sweep of Section 6 read with Section 2(b) of thethe light of the aforesaid observations, it was held that the scheme which fell for consideration of the Court was a scheme of Production Bonus wherein beyond a base or standard up to which basic wages or time wages have to be paid, payments were made for superior performance. This extra payment could be called an incentive wage and also Production Bonus. The aforesaid observations of the six-member Bench clearly clinch the issue against the appellants. In order to become a genuine Production Bonus scheme payment to be made to meritorious workmen who put in extra output, has to have a direct nexus and linkage with the amount of extra output produced by the eligible workmen so that the scheme can work as a real incentive scheme equally to them to make extra efforts. Such a scheme may have sliding scales of bonus amount based to total extra quantity of production for which all workmen can uniformly be paid bonus on the basis of their co-operative efforts. More the extra production more the available surplus of bonus to be divided amongst all eligible workmen uniformly. Other type of incentive bonus scheme may be made available to an individual meritorious workman, extra payment for extra work having direct linkage with the extra production out-turned by him. In neither case such distributable bonus can be a static figure as in the present case. On the facts of the present case, as seen earlier, unfortunately for the appellants the scheme on which they relied does not fulfil the aforesaid legal logistic for becoming a genuine Production Bonus scheme. It is not a scheme of sliding scale bonus having real nexus with the amount of extra output furnished by the concerned workmen either individually or collectively. As seen earlier, once they crossed even slightly the norm of work expected of them in a given shift, they all fall in the same category of eligible workmen entitled to get on uniform basis extra amount of 1 times the basic daily wage. Thus, this scheme of paying extra remuneration to more eligible and efficient workmen is a scheme of super wage fixation and is not a genuine scheme of incentive bonus which has to be earned by the workmen by showing their capabilities for earning such extra bonus linked up with the quantity of extra production. In the same volume at page 995 is reported the case of Jay Engineering Works Ltd. & Ors. v. Union of India & Ors. (supra), wherein also Wanchoo, J., spoke for a four-member Bench. The scheme under this very Act which came for consideration in that case was a composite Production Bonus scheme. It laid down that if a workman gave out-turn beyond the minimum quantity fixed for him by way of floor quota he became entitled to additional remuneration even though that additional remuneration was for that extra out-turn of work which was below the norm of out-turn which he was enjoined under the contract of service to fulfil. The very scheme also contemplated extra amount to be paid to the workmen who exceeded the norms of output and gave extra output beyond such norms. Analysing the said scheme Wanchoo, J., for this court held that to the extent to which any more remuneration was paid to the workman who had given out-turn more than the quantity of quota output fixed but up to limit of the normal output required of him, the extra remuneration part-took the character of extra wage and was covered by the definition of "basic wages" but to the extent to which such out-turn went beyond normal requirement of amount fixed, then to that extent extra payment for such extra output beyond the norms fixed became a Production Bonus scheme. In the case before this Court, such extra payment was on a piece rate basis. The workman concerned became entitled to be paid additional remuneration to the extent to which he produced goods beyond the norms prescribed for such work. It is easy to visualise that once a workman under any scheme of bonus is to be paid on piece rate basis for the extra output given by him beyond the norms prescribed for such work, the extra amount payable to him will have a direct linkage with the extra output furnished by him. More extra output more payment; less extra output less payment. Such a scheme would be a genuine Production Bonus scheme. The scheme in question does not fulfil the criteria laid down for a genuine production bonus scheme by either of the judgments of this Court in Bridge & Roof Co. (India) Ltd v. Union of India case (supra) or in Jay Engineering Works Ltd & Ors. v. The Union of India & Ors. case (supra).14. In this connection, we may now usefully refer to the Constitution Bench judgment in M/s Titaghur Paper Mills Co. Ltd. v. Its Workmen case (supra), wherein an earlier Constitution Bench speaking though Wanchoo, J., had occasion to consider the legal connotation of a Production Bonus scheme as distinct from profit bonus scheme. The scheme which fell for consideration of the Constitution Bench in the said case was one floated by the company wherein up to the production 36,000 tons, there was a uniform rate of bonus payable by the company for giving appropriate remuneration to the workmen for producing that much quantity of goods but the scheme did not provide for production bonus for production above 36,000 tons, as there was no agreement between the Management and the Union in this respect. The question before the Industrial Tribunal from whose decision appeal came to this court was whether the workmen were entitled to be given further benefit of production incentive scheme if by their joint efforts production of the company went beyond 36,000 tons and whether it was necessary to provide for Production Bonus beyond this limit. The Tribunal, in that case while giving clearance to such a scheme, gave two reasons for increase in the rates of payment of Production Bonus: (i) the intensification of the efforts of the workmen in increasing production, and (ii) the progressive going down of the labour cost of production per ton as production increased. The rates had to be increased progressively with production. Consequently, for each 460 tons increase in production the proper rates for payment of Production Bonus would be 1-1/4, 1, 1-3/4 and 2 days basic wages respectively or production between 36,000 and 42,000 tons, 42,000 and 48,000 tons, 48,000 and 54,000 tons and 54,000 and 60,000 tons. It is this additional Production Bonus scheme ordered by the Tribunal which was examined by this Court in the said decision. While upholding the said modification in the bonus scheme of the company, this court held that this was not a profit bonus scheme but was a genuine production incentive bonus scheme as the Production Bonus to be paid to the workmen was directly linked with the extra output furnished by them by their own efforts beyond the requisite norms of output. It was held that the scheme before them was nothing more or less than Production Bonus scheme on the basis of tonnage of production. The aforesaid decision of the Constitution Bench wherein Wanchoo, J., spoke for the Bench, was pressed in service by the same learned Judge speaking for the latter Constitution Bench while considering Section 2(b) of this very Act in Bridge & Roof Co. (India) Ltd v. Union of India case (supra) as seen earlier.15. It, therefore, becomes clear that in order to become a genuine Production Bonus scheme so as to get covered by exception (ii) to the definition of "basic wages" as found under Section 2(b) of the Act, it must be shown that the scheme in question seeks to offer production bonus to the workmen concerned who put in extra output wherein either collectively bonus be fixed to all of them on the basis of total extra output on a sliding scale or may be paid individually to a given number of workmen who by their own efforts earn such bonus. Thus in each case payment of bonus cannot be of a fixed or proven nature having no nexus with the quantity of extra output produced by them. As in the present case the scheme relied on by the appellants does not fulfil this legal test, it does not attract the exception (ii) to Section 2(b). It remains in the realm of basic extra wage. The decision rendered by learned Single Judge of the High Court as confirmed by the Division Bench decision, cannot, therefore be found fault with. The submission of learned counsel for the appellants that in the scheme in question there was no compulsion for the workman to put in extra work and the management could not compel him to do extra work nor can it allege any misconduct on the part of such workman who does not want to do excess work cannot be of any avail to the learned counsel for the appellants as even if this criteria may be common to the present scheme as well as the genuine Production Bonus scheme, the further requirement of the scheme to become a genuine Production Bonus scheme, namely, that the payment by way of bonus to the concerned eligible workman should vary in proportion to the extra output put up by him beyond the norm of output prescribed for him, is conspicuously absent in the present scheme, as seen earlier, and on the other hand, this requirement which is the very heart of a genuine Production Bonus scheme is missing in the present scheme and therefore, similarity on only one aspect between the genuine production incentive scheme and the present scheme, namely, that the workman could not have been compelled to carry out extra work pales into insignificance on the facts of the present case. Therefore, the second question has to be answered against the appellants and in favour of the respondent.While granting special leave to appeal in this case, by an order dated 9th May, 1988, this court had stayed the recovery of the amounts of the Employees Provident Fund contribution for the past period, subject to furnishing a bank guarantee for payment of that sum. But no stay of recovery of future contribution was granted. As the appeals fail, the bank guarantee if furnished by the appellants, will be available for being encashed by the respondents towards the liability of the appellants for the contributions for the past period which had remained stayed by order of this court. | 0 | 8,812 | 3,079 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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Co. (India) Ltd v. Union of India case (supra) or in Jay Engineering Works Ltd & Ors. v. The Union of India & Ors. case (supra).14. In this connection, we may now usefully refer to the Constitution Bench judgment in M/s Titaghur Paper Mills Co. Ltd. v. Its Workmen case (supra), wherein an earlier Constitution Bench speaking though Wanchoo, J., had occasion to consider the legal connotation of a Production Bonus scheme as distinct from profit bonus scheme. The scheme which fell for consideration of the Constitution Bench in the said case was one floated by the company wherein up to the production 36,000 tons, there was a uniform rate of bonus payable by the company for giving appropriate remuneration to the workmen for producing that much quantity of goods but the scheme did not provide for production bonus for production above 36,000 tons, as there was no agreement between the Management and the Union in this respect. The question before the Industrial Tribunal from whose decision appeal came to this court was whether the workmen were entitled to be given further benefit of production incentive scheme if by their joint efforts production of the company went beyond 36,000 tons and whether it was necessary to provide for Production Bonus beyond this limit. The Tribunal, in that case while giving clearance to such a scheme, gave two reasons for increase in the rates of payment of Production Bonus: (i) the intensification of the efforts of the workmen in increasing production, and (ii) the progressive going down of the labour cost of production per ton as production increased. The rates had to be increased progressively with production. Consequently, for each 460 tons increase in production the proper rates for payment of Production Bonus would be 1-1/4, 1, 1-3/4 and 2 days basic wages respectively or production between 36,000 and 42,000 tons, 42,000 and 48,000 tons, 48,000 and 54,000 tons and 54,000 and 60,000 tons. It is this additional Production Bonus scheme ordered by the Tribunal which was examined by this Court in the said decision. While upholding the said modification in the bonus scheme of the company, this court held that this was not a profit bonus scheme but was a genuine production incentive bonus scheme as the Production Bonus to be paid to the workmen was directly linked with the extra output furnished by them by their own efforts beyond the requisite norms of output. It was held that the scheme before them was nothing more or less than Production Bonus scheme on the basis of tonnage of production. The aforesaid decision of the Constitution Bench wherein Wanchoo, J., spoke for the Bench, was pressed in service by the same learned Judge speaking for the latter Constitution Bench while considering Section 2(b) of this very Act in Bridge & Roof Co. (India) Ltd v. Union of India case (supra) as seen earlier.15. It, therefore, becomes clear that in order to become a genuine Production Bonus scheme so as to get covered by exception (ii) to the definition of "basic wages" as found under Section 2(b) of the Act, it must be shown that the scheme in question seeks to offer production bonus to the workmen concerned who put in extra output wherein either collectively bonus be fixed to all of them on the basis of total extra output on a sliding scale or may be paid individually to a given number of workmen who by their own efforts earn such bonus. Thus in each case payment of bonus cannot be of a fixed or proven nature having no nexus with the quantity of extra output produced by them. As in the present case the scheme relied on by the appellants does not fulfil this legal test, it does not attract the exception (ii) to Section 2(b). It remains in the realm of basic extra wage. The decision rendered by learned Single Judge of the High Court as confirmed by the Division Bench decision, cannot, therefore be found fault with. The submission of learned counsel for the appellants that in the scheme in question there was no compulsion for the workman to put in extra work and the management could not compel him to do extra work nor can it allege any misconduct on the part of such workman who does not want to do excess work cannot be of any avail to the learned counsel for the appellants as even if this criteria may be common to the present scheme as well as the genuine Production Bonus scheme, the further requirement of the scheme to become a genuine Production Bonus scheme, namely, that the payment by way of bonus to the concerned eligible workman should vary in proportion to the extra output put up by him beyond the norm of output prescribed for him, is conspicuously absent in the present scheme, as seen earlier, and on the other hand, this requirement which is the very heart of a genuine Production Bonus scheme is missing in the present scheme and therefore, similarity on only one aspect between the genuine production incentive scheme and the present scheme, namely, that the workman could not have been compelled to carry out extra work pales into insignificance on the facts of the present case. Therefore, the second question has to be answered against the appellants and in favour of the respondent. Point No. 3: 16. While granting special leave to appeal in this case, by an order dated 9th May, 1988, this court had stayed the recovery of the amounts of the Employees Provident Fund contribution for the past period, subject to furnishing a bank guarantee for payment of that sum. But no stay of recovery of future contribution was granted. As the appeals fail, the bank guarantee if furnished by the appellants, will be available for being encashed by the respondents towards the liability of the appellants for the contributions for the past period which had remained stayed by order of this court. 17.
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this Court in Bridge & Roof Co. (India) Ltd v. Union of India case (supra) or in Jay Engineering Works Ltd & Ors. v. The Union of India & Ors. case (supra).14. In this connection, we may now usefully refer to the Constitution Bench judgment in M/s Titaghur Paper Mills Co. Ltd. v. Its Workmen case (supra), wherein an earlier Constitution Bench speaking though Wanchoo, J., had occasion to consider the legal connotation of a Production Bonus scheme as distinct from profit bonus scheme. The scheme which fell for consideration of the Constitution Bench in the said case was one floated by the company wherein up to the production 36,000 tons, there was a uniform rate of bonus payable by the company for giving appropriate remuneration to the workmen for producing that much quantity of goods but the scheme did not provide for production bonus for production above 36,000 tons, as there was no agreement between the Management and the Union in this respect. The question before the Industrial Tribunal from whose decision appeal came to this court was whether the workmen were entitled to be given further benefit of production incentive scheme if by their joint efforts production of the company went beyond 36,000 tons and whether it was necessary to provide for Production Bonus beyond this limit. The Tribunal, in that case while giving clearance to such a scheme, gave two reasons for increase in the rates of payment of Production Bonus: (i) the intensification of the efforts of the workmen in increasing production, and (ii) the progressive going down of the labour cost of production per ton as production increased. The rates had to be increased progressively with production. Consequently, for each 460 tons increase in production the proper rates for payment of Production Bonus would be 1-1/4, 1, 1-3/4 and 2 days basic wages respectively or production between 36,000 and 42,000 tons, 42,000 and 48,000 tons, 48,000 and 54,000 tons and 54,000 and 60,000 tons. It is this additional Production Bonus scheme ordered by the Tribunal which was examined by this Court in the said decision. While upholding the said modification in the bonus scheme of the company, this court held that this was not a profit bonus scheme but was a genuine production incentive bonus scheme as the Production Bonus to be paid to the workmen was directly linked with the extra output furnished by them by their own efforts beyond the requisite norms of output. It was held that the scheme before them was nothing more or less than Production Bonus scheme on the basis of tonnage of production. The aforesaid decision of the Constitution Bench wherein Wanchoo, J., spoke for the Bench, was pressed in service by the same learned Judge speaking for the latter Constitution Bench while considering Section 2(b) of this very Act in Bridge & Roof Co. (India) Ltd v. Union of India case (supra) as seen earlier.15. It, therefore, becomes clear that in order to become a genuine Production Bonus scheme so as to get covered by exception (ii) to the definition of "basic wages" as found under Section 2(b) of the Act, it must be shown that the scheme in question seeks to offer production bonus to the workmen concerned who put in extra output wherein either collectively bonus be fixed to all of them on the basis of total extra output on a sliding scale or may be paid individually to a given number of workmen who by their own efforts earn such bonus. Thus in each case payment of bonus cannot be of a fixed or proven nature having no nexus with the quantity of extra output produced by them. As in the present case the scheme relied on by the appellants does not fulfil this legal test, it does not attract the exception (ii) to Section 2(b). It remains in the realm of basic extra wage. The decision rendered by learned Single Judge of the High Court as confirmed by the Division Bench decision, cannot, therefore be found fault with. The submission of learned counsel for the appellants that in the scheme in question there was no compulsion for the workman to put in extra work and the management could not compel him to do extra work nor can it allege any misconduct on the part of such workman who does not want to do excess work cannot be of any avail to the learned counsel for the appellants as even if this criteria may be common to the present scheme as well as the genuine Production Bonus scheme, the further requirement of the scheme to become a genuine Production Bonus scheme, namely, that the payment by way of bonus to the concerned eligible workman should vary in proportion to the extra output put up by him beyond the norm of output prescribed for him, is conspicuously absent in the present scheme, as seen earlier, and on the other hand, this requirement which is the very heart of a genuine Production Bonus scheme is missing in the present scheme and therefore, similarity on only one aspect between the genuine production incentive scheme and the present scheme, namely, that the workman could not have been compelled to carry out extra work pales into insignificance on the facts of the present case. Therefore, the second question has to be answered against the appellants and in favour of the respondent.While granting special leave to appeal in this case, by an order dated 9th May, 1988, this court had stayed the recovery of the amounts of the Employees Provident Fund contribution for the past period, subject to furnishing a bank guarantee for payment of that sum. But no stay of recovery of future contribution was granted. As the appeals fail, the bank guarantee if furnished by the appellants, will be available for being encashed by the respondents towards the liability of the appellants for the contributions for the past period which had remained stayed by order of this court.
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The Reliable Water Supply Service of India (P) Ltd Vs. The Union of India & Others | the appellant that they would deduct the amount in question from its bills. The appellant protested against the threatened deduction. Thereafter the Union of India referred the dispute to Col. J. S. Sandhu on August 13, 1962, negativing the contention of the appellant that the dispute in question does not fall within the scope of the agreement entered into by it with the Union of India. Soon thereafter the appellant moved the Court of Civil Judge, Lucknow under Section 5 of the Indian Arbitration Act, 1940 for revoking the reference to the arbitrator. The trial Court accepted that application and ordered the revocation of the reference. The Union of India took up the matter in appeal to the High Court of Allahabad. The appellant contested the appeal on various grounds. One of the grounds taken by him was that the appeal was not maintainable. The High Court accepted that contention but converted the appeal into a revision under Section 115 of the Code of Civil Procedure. The High Court set aside the order of the trial Court holding that the reference was a valid one. Thereafter this appeal was brought after obtaining a certificate from the High Court. 2. In support of the appeal, two contentions were advanced by the learned Counsel for the appellant viz. (1) that the dispute in question does not fall within the scope of clause (70) of the agreement and (2) that the High Court had no jurisdiction to convert the appeal into a revision under Section 115 of the Code of Civil Procedure. 3. The clauses in the agreement which are relevant for deciding the points arising in the appeal are Clauses 48(c) and 70. Clause 48(c) reads : "Damage and Loss : (c) Save as provided above, the Contractor shall at his own expense reinstate and make good to the satisfaction of the G.E. or make compensation for any injury, loss or damage occasioned to any property or right whatever including property and right of Government (or agents, servants, or employees of Government) being injury, loss or damage arising out of or in any way in connection with the execution or purported execution of the Contract and further, Contractor shall indemnify Government against all claims enforceable against Government (or any agent, servant or employee of Government) or which would be so enforceable against Government were Government a private person, in respect of such injury (including injury resulting in death), loss or damage to any person whomsoever or property, including all claims which may arise under the Workmens Compensation Act or otherwise." Clause 70 reads : "Arbitration. - All disputes, between the parties to the Contract (other than those for which the decision of the C.W.E. or any other person is by the Contract expressed to be final and conclusive) shall, after written notice by either party to the Contract to the other of them be referred to the sole arbitration of an Engineer Officer to be appointed by the authority mentioned in the tender Documents." 4. In support of the contention that the dispute in question did not fall within the scope of Clause 70 of the agreement, it was urged that the contract entered into by the appellant was with the President of India and that the damage, if any, caused to the aircraft was to the property of the Air Force and hence the same cannot be considered as causing any loss to the property of the Union Government. This is an untenable contention. The Government is the owner of the aircraft in question. The armed forces of this country do not form a separate legal entity. The army is only one of the many departments of the Government. Hence the damage to the aircraft has resulted in loss to the Government of India. 5. The second contention advanced on behalf of the appellant is that the damage in question was not caused while carrying out the terms of the contract and therefore the same does not fall within Clause 48(c). This contention again cannot be accepted. From the facts set out above, about which there is no dispute, damage to the aircraft was caused while implementing the terms of the contract. We are clear in our opinion that the claim made by the Government falls within the scope of Clause 48(c) and as there is a dispute between the parties about the sustainability of that claim as well as to the quantum of the loss caused, the dispute falls within the scope of Clause (70). This conclusion disposes of the first contention. 6. Turning now to the second contention, in our opinion, the application under Section 5 of the Arbitration Act, 1940 was a misconceived application. The controversy in this case is whether the dispute in question is covered by the terms of the agreement. In other words the dispute is as to the existence of an agreement to refer disputes of the type with which we are concerned in this case, to arbitration. That being so, the case fell within the scope of Section 33 of the Arbitration Act and not Section 5. In view of the erroneous conclusion of the trial Court that the Air Force is a legal entity different from the Union Government, it proceeded to take the view that the dispute in question is not covered by Clause 48(c) and hence did not come within the scope of Clause (70). The trial Court was under the erroneous impression that the controversy before it fell within the scope of Section 5 of the Arbitration Act. We do not know what its conclusion would have been if it had taken the correct view of the law. The facts disclosed in the application did not confer jurisdiction upon it under section 5. It did not consider the application under Section 33. Hence in our opinion it illegally exercised its jurisdiction under Section 5. Under those circumstances the High Court was right in converting the appeal into a revision. | 0[ds]4. In support of the contention that the dispute in question did not fall within the scope of Clause 70 of the agreement, it was urged that the contract entered into by the appellant was with the President of India and that the damage, if any, caused to the aircraft was to the property of the Air Force and hence the same cannot be considered as causing any loss to the property of the UnionGovernment.This is an untenable contention. The Government is the owner of the aircraft in question. The armed forces of this country do not form a separate legal entity. The army is only one of the many departments of theGovernment.Hence the damage to the aircraft has resulted in loss to the Government of IndiaThis contention again cannot be accepted. From the facts set out above, about which there is no dispute, damage to the aircraft was caused while implementing the terms of the contract. We are clear in our opinion that the claim made by the Government falls within the scope of Clause 48(c) and as there is a dispute between the parties about the sustainability of that claim as well as to the quantum of the loss caused, the dispute falls within the scope of Clause (70). This conclusion disposes of the first contention6. Turning now to the second contention, in our opinion, the application under Section 5 of the Arbitration Act, 1940 was a misconceived application. The controversy in this case is whether the dispute in question is covered by the terms of the agreement. In other words the dispute is as to the existence of an agreement to refer disputes of the type with which we are concerned in this case, to arbitration. That being so, the case fell within the scope of Section 33 of the Arbitration Act and not Section 5. In view of the erroneous conclusion of the trial Court that the Air Force is a legal entity different from the Union Government, it proceeded to take the view that the dispute in question is not covered by Clause 48(c) and hence did not come within the scope of Clause (70). The trial Court was under the erroneous impression that the controversy before it fell within the scope of Section 5 of the Arbitration Act. We do not know what its conclusion would have been if it had taken the correct view of the law. The facts disclosed in the application did not confer jurisdiction upon it under section 5. It did not consider the application under Section 33. Hence in our opinion it illegally exercised its jurisdiction under Section 5. Under those circumstances the High Court was right in converting the appeal into a revision. | 0 | 1,304 | 502 | ### 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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the appellant that they would deduct the amount in question from its bills. The appellant protested against the threatened deduction. Thereafter the Union of India referred the dispute to Col. J. S. Sandhu on August 13, 1962, negativing the contention of the appellant that the dispute in question does not fall within the scope of the agreement entered into by it with the Union of India. Soon thereafter the appellant moved the Court of Civil Judge, Lucknow under Section 5 of the Indian Arbitration Act, 1940 for revoking the reference to the arbitrator. The trial Court accepted that application and ordered the revocation of the reference. The Union of India took up the matter in appeal to the High Court of Allahabad. The appellant contested the appeal on various grounds. One of the grounds taken by him was that the appeal was not maintainable. The High Court accepted that contention but converted the appeal into a revision under Section 115 of the Code of Civil Procedure. The High Court set aside the order of the trial Court holding that the reference was a valid one. Thereafter this appeal was brought after obtaining a certificate from the High Court. 2. In support of the appeal, two contentions were advanced by the learned Counsel for the appellant viz. (1) that the dispute in question does not fall within the scope of clause (70) of the agreement and (2) that the High Court had no jurisdiction to convert the appeal into a revision under Section 115 of the Code of Civil Procedure. 3. The clauses in the agreement which are relevant for deciding the points arising in the appeal are Clauses 48(c) and 70. Clause 48(c) reads : "Damage and Loss : (c) Save as provided above, the Contractor shall at his own expense reinstate and make good to the satisfaction of the G.E. or make compensation for any injury, loss or damage occasioned to any property or right whatever including property and right of Government (or agents, servants, or employees of Government) being injury, loss or damage arising out of or in any way in connection with the execution or purported execution of the Contract and further, Contractor shall indemnify Government against all claims enforceable against Government (or any agent, servant or employee of Government) or which would be so enforceable against Government were Government a private person, in respect of such injury (including injury resulting in death), loss or damage to any person whomsoever or property, including all claims which may arise under the Workmens Compensation Act or otherwise." Clause 70 reads : "Arbitration. - All disputes, between the parties to the Contract (other than those for which the decision of the C.W.E. or any other person is by the Contract expressed to be final and conclusive) shall, after written notice by either party to the Contract to the other of them be referred to the sole arbitration of an Engineer Officer to be appointed by the authority mentioned in the tender Documents." 4. In support of the contention that the dispute in question did not fall within the scope of Clause 70 of the agreement, it was urged that the contract entered into by the appellant was with the President of India and that the damage, if any, caused to the aircraft was to the property of the Air Force and hence the same cannot be considered as causing any loss to the property of the Union Government. This is an untenable contention. The Government is the owner of the aircraft in question. The armed forces of this country do not form a separate legal entity. The army is only one of the many departments of the Government. Hence the damage to the aircraft has resulted in loss to the Government of India. 5. The second contention advanced on behalf of the appellant is that the damage in question was not caused while carrying out the terms of the contract and therefore the same does not fall within Clause 48(c). This contention again cannot be accepted. From the facts set out above, about which there is no dispute, damage to the aircraft was caused while implementing the terms of the contract. We are clear in our opinion that the claim made by the Government falls within the scope of Clause 48(c) and as there is a dispute between the parties about the sustainability of that claim as well as to the quantum of the loss caused, the dispute falls within the scope of Clause (70). This conclusion disposes of the first contention. 6. Turning now to the second contention, in our opinion, the application under Section 5 of the Arbitration Act, 1940 was a misconceived application. The controversy in this case is whether the dispute in question is covered by the terms of the agreement. In other words the dispute is as to the existence of an agreement to refer disputes of the type with which we are concerned in this case, to arbitration. That being so, the case fell within the scope of Section 33 of the Arbitration Act and not Section 5. In view of the erroneous conclusion of the trial Court that the Air Force is a legal entity different from the Union Government, it proceeded to take the view that the dispute in question is not covered by Clause 48(c) and hence did not come within the scope of Clause (70). The trial Court was under the erroneous impression that the controversy before it fell within the scope of Section 5 of the Arbitration Act. We do not know what its conclusion would have been if it had taken the correct view of the law. The facts disclosed in the application did not confer jurisdiction upon it under section 5. It did not consider the application under Section 33. Hence in our opinion it illegally exercised its jurisdiction under Section 5. Under those circumstances the High Court was right in converting the appeal into a revision.
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4. In support of the contention that the dispute in question did not fall within the scope of Clause 70 of the agreement, it was urged that the contract entered into by the appellant was with the President of India and that the damage, if any, caused to the aircraft was to the property of the Air Force and hence the same cannot be considered as causing any loss to the property of the UnionGovernment.This is an untenable contention. The Government is the owner of the aircraft in question. The armed forces of this country do not form a separate legal entity. The army is only one of the many departments of theGovernment.Hence the damage to the aircraft has resulted in loss to the Government of IndiaThis contention again cannot be accepted. From the facts set out above, about which there is no dispute, damage to the aircraft was caused while implementing the terms of the contract. We are clear in our opinion that the claim made by the Government falls within the scope of Clause 48(c) and as there is a dispute between the parties about the sustainability of that claim as well as to the quantum of the loss caused, the dispute falls within the scope of Clause (70). This conclusion disposes of the first contention6. Turning now to the second contention, in our opinion, the application under Section 5 of the Arbitration Act, 1940 was a misconceived application. The controversy in this case is whether the dispute in question is covered by the terms of the agreement. In other words the dispute is as to the existence of an agreement to refer disputes of the type with which we are concerned in this case, to arbitration. That being so, the case fell within the scope of Section 33 of the Arbitration Act and not Section 5. In view of the erroneous conclusion of the trial Court that the Air Force is a legal entity different from the Union Government, it proceeded to take the view that the dispute in question is not covered by Clause 48(c) and hence did not come within the scope of Clause (70). The trial Court was under the erroneous impression that the controversy before it fell within the scope of Section 5 of the Arbitration Act. We do not know what its conclusion would have been if it had taken the correct view of the law. The facts disclosed in the application did not confer jurisdiction upon it under section 5. It did not consider the application under Section 33. Hence in our opinion it illegally exercised its jurisdiction under Section 5. Under those circumstances the High Court was right in converting the appeal into a revision.
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UNION BANK OF INDIA Vs. RAJAT INFRASTRUCTURE PVT. LTD. & ORS | of the High Court are as under: 7. Suffice it to state that where a proposed sale notice is questioned with reference to the reserve price fixed and the argument takes the form of considering valuation report, such order, if challenged before DRAT, would not require any pre-deposit being made for the reason under the impugned order, no decree has been passed or liability fixed. It would depend on the nature of the order whether before the appeal there against is entertained, should a pre¬deposit be made. 6. Mr. O.P. Gaggar, learned counsel for the appellant submitted that the order of the High Court is not only against the provisions of the Act but also against the law laid down by this Court. Mr. Dushyant A. Dave, learned senior counsel for the auction purchasers, respondent nos. 2 and 3, supported the case of the appellant and submitted that the no appeal on behalf of respondent no. 1 can lie without complying with the provisions of Section 18 of the SARFAESI Act which mandates the deposit of 50% or at least 25% of the amount due, as claimed by the secured creditor or determined by the Debt Recovery Tribunal (DRT). On the other hand, Mr. Vikram Chaudhri, learned senior counsel appearing for the respondent no.1 urged that the High Court has exercised its discretionary jurisdiction under Article 226 of the Constitution of India while holding that it is not required to make pre¬deposit. He also submits that the respondent no.1 is not a borrower and finally submits that the main ground is that since the amount offered by the highest bidder is below the value of the property, the DRAT is entitled to entertain the appeal without deposit of any amount. It is submitted that the value of the property is about Rs.160 crores and even the value as per the circle rate is about Rs.120 crores, but the same has been sold for a pittance of Rs.65.52 crores. He also submitted that there is collusion between the employees of the Bank and the successful bidders. 7. We may make it clear that we are not going into the merits of the case in view of the fact that we agree with the High Court that the matter must be decided by the DRAT. The only issue is whether the High Court was right in holding that no pre¬deposit was required. We may refer to Section 18 of the SARFAESI Act, which reads as follows: 18. Appeal to Appellate Tribunal.—(1) Any person aggrieved, by any order made by the Debts Recovery Tribunal under section 17, may prefer an appeal along with such fee, as may be prescribed to an Appellate Tribunal within thirty days from the date of receipt of the order of Debts Recovery Tribunal. Provided that different fees may be prescribed for filing an appeal by the borrower or by the person other than the borrower: Provided further that no appeal shall be entertained unless the borrower has deposited with the Appellate Tribunal fifty per cent. of the amount of debt due from him, as claimed by the secured creditors or determined by the Debts Recovery Tribunal, whichever is less: Provided also that the Appellate Tribunal may, for the reasons to be recorded in writing, reduce the amount to not less than twenty-five per cent. of debt referred to in the second proviso. xxx xxx xxx This Court in the case of Narayan Chandra Ghosh vs. UCO Bank & Ors. (2011) 4 SCC 548 , held that keeping in view the language of the Section even if the amount or debt due had not been determined by the DRT, the appeal could not be entertained by the DRAT without insisting on pre-deposit. The DRAT, at best could, after recording the reasons, have reduced the amount to 25% but could not have totally waived the deposit. This Court also held that the right of appeal conferred under Section 18(1) is subject to the conditions laid down in the second proviso therein which postulates that no appeal shall be entertained unless the borrower has deposited 50% of the amount of debt due from him as claimed by the secured creditors or determined by the DRT, whichever is less. The third proviso enables the DRAT, for reasons to be recorded in writing, to reduce the amount of deposit to not less than 25%. The following observations of this Court are relevant: 7…Thus, there is an absolute bar to the entertainment of an appeal under Section 18 of the Act unless the condition precedent, as stipulated, is fulfilled. Unless the borrower makes, with the Appellate Tribunal, a pre¬ deposit of fifty per cent of the debt due from him or determined, an appeal under the said provision cannot be entertained by the Appellate Tribunal. The language of the said proviso is clear and admits of no ambiguity. 8. In view of the law laid down by this Court, we are clearly of the view that the observation made by the High Court was totally incorrect. 9. We are not in agreement with the submission of Mr. Chaudhri that the High Court has exercised its discretionary powers under Article 226 of the Constitution. The order of the High Court does not show any exercise of such discretionary powers but according to the High Court on an interpretation of the Section, pre¬deposit was not required. We are also not impressed with the argument of Mr. Chaudhri that his client is not a borrower. A guarantor or a mortgagor, who has mortgaged its property to secure the repayment of the loan, stands on the same footing as a borrower and if he wants to file an appeal, he must comply with the terms of Section 18 of the SARFAESI Act. 10. Furthermore, we may add that the High Court has no powers akin to powers vested in this Court under Article 142 of the Constitution. The High Court cannot give directions which are contrary to law. | 1[ds]7. We may make it clear that we are not going into the merits of the case in view of the fact that we agree with the High Court that the matter must be decided by the DRAT8. In view of the law laid down by this Court, we are clearly of the view that the observation made by the High Court was totally incorrect9. We are not in agreement with the submission of Mr. Chaudhri that the High Court has exercised its discretionary powers under Article 226 of the Constitution. The order of the High Court does not show any exercise of such discretionary powers but according to the High Court on an interpretation of the Section, pre¬deposit was not required. We are also not impressed with the argument of Mr. Chaudhri that his client is not a borrower. A guarantor or a mortgagor, who has mortgaged its property to secure the repayment of the loan, stands on the same footing as a borrower and if he wants to file an appeal, he must comply with the terms of Section 18 of the SARFAESI Act10. Furthermore, we may add that the High Court has no powers akin to powers vested in this Court under Article 142 of the Constitution. The High Court cannot give directions which are contrary to lawThis Court in the case of Narayan Chandra Ghosh vs. UCO Bank & Ors.(2011) 4 SCC 548 , held that keeping in view the language of the Section even if the amount or debt due had not been determined by the DRT, the appeal could not be entertained by the DRAT without insisting on pre-deposit. The DRAT, at best could, after recording the reasons, have reduced the amount to 25% but could not have totally waived the deposit. This Court also held that the right of appeal conferred under Section 18(1) is subject to the conditions laid down in the second proviso therein which postulates that no appeal shall be entertained unless the borrower has deposited 50% of the amount of debt due from him as claimed by the secured creditors or determined by the DRT, whichever is less. The third proviso enables the DRAT, for reasons to be recorded in writing, to reduce the amount of deposit to not less than 25%. The following observations of this Court are relevant:7…Thus, there is an absolute bar to the entertainment of an appeal under Section 18 of the Act unless the condition precedent, as stipulated, is fulfilled. Unless the borrower makes, with the Appellate Tribunal, a pre¬ deposit of fifty per cent of the debt due from him or determined, an appeal under the said provision cannot be entertained by the Appellate Tribunal. The language of the said proviso is clear and admits of no ambiguity. | 1 | 1,477 | 515 | ### 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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of the High Court are as under: 7. Suffice it to state that where a proposed sale notice is questioned with reference to the reserve price fixed and the argument takes the form of considering valuation report, such order, if challenged before DRAT, would not require any pre-deposit being made for the reason under the impugned order, no decree has been passed or liability fixed. It would depend on the nature of the order whether before the appeal there against is entertained, should a pre¬deposit be made. 6. Mr. O.P. Gaggar, learned counsel for the appellant submitted that the order of the High Court is not only against the provisions of the Act but also against the law laid down by this Court. Mr. Dushyant A. Dave, learned senior counsel for the auction purchasers, respondent nos. 2 and 3, supported the case of the appellant and submitted that the no appeal on behalf of respondent no. 1 can lie without complying with the provisions of Section 18 of the SARFAESI Act which mandates the deposit of 50% or at least 25% of the amount due, as claimed by the secured creditor or determined by the Debt Recovery Tribunal (DRT). On the other hand, Mr. Vikram Chaudhri, learned senior counsel appearing for the respondent no.1 urged that the High Court has exercised its discretionary jurisdiction under Article 226 of the Constitution of India while holding that it is not required to make pre¬deposit. He also submits that the respondent no.1 is not a borrower and finally submits that the main ground is that since the amount offered by the highest bidder is below the value of the property, the DRAT is entitled to entertain the appeal without deposit of any amount. It is submitted that the value of the property is about Rs.160 crores and even the value as per the circle rate is about Rs.120 crores, but the same has been sold for a pittance of Rs.65.52 crores. He also submitted that there is collusion between the employees of the Bank and the successful bidders. 7. We may make it clear that we are not going into the merits of the case in view of the fact that we agree with the High Court that the matter must be decided by the DRAT. The only issue is whether the High Court was right in holding that no pre¬deposit was required. We may refer to Section 18 of the SARFAESI Act, which reads as follows: 18. Appeal to Appellate Tribunal.—(1) Any person aggrieved, by any order made by the Debts Recovery Tribunal under section 17, may prefer an appeal along with such fee, as may be prescribed to an Appellate Tribunal within thirty days from the date of receipt of the order of Debts Recovery Tribunal. Provided that different fees may be prescribed for filing an appeal by the borrower or by the person other than the borrower: Provided further that no appeal shall be entertained unless the borrower has deposited with the Appellate Tribunal fifty per cent. of the amount of debt due from him, as claimed by the secured creditors or determined by the Debts Recovery Tribunal, whichever is less: Provided also that the Appellate Tribunal may, for the reasons to be recorded in writing, reduce the amount to not less than twenty-five per cent. of debt referred to in the second proviso. xxx xxx xxx This Court in the case of Narayan Chandra Ghosh vs. UCO Bank & Ors. (2011) 4 SCC 548 , held that keeping in view the language of the Section even if the amount or debt due had not been determined by the DRT, the appeal could not be entertained by the DRAT without insisting on pre-deposit. The DRAT, at best could, after recording the reasons, have reduced the amount to 25% but could not have totally waived the deposit. This Court also held that the right of appeal conferred under Section 18(1) is subject to the conditions laid down in the second proviso therein which postulates that no appeal shall be entertained unless the borrower has deposited 50% of the amount of debt due from him as claimed by the secured creditors or determined by the DRT, whichever is less. The third proviso enables the DRAT, for reasons to be recorded in writing, to reduce the amount of deposit to not less than 25%. The following observations of this Court are relevant: 7…Thus, there is an absolute bar to the entertainment of an appeal under Section 18 of the Act unless the condition precedent, as stipulated, is fulfilled. Unless the borrower makes, with the Appellate Tribunal, a pre¬ deposit of fifty per cent of the debt due from him or determined, an appeal under the said provision cannot be entertained by the Appellate Tribunal. The language of the said proviso is clear and admits of no ambiguity. 8. In view of the law laid down by this Court, we are clearly of the view that the observation made by the High Court was totally incorrect. 9. We are not in agreement with the submission of Mr. Chaudhri that the High Court has exercised its discretionary powers under Article 226 of the Constitution. The order of the High Court does not show any exercise of such discretionary powers but according to the High Court on an interpretation of the Section, pre¬deposit was not required. We are also not impressed with the argument of Mr. Chaudhri that his client is not a borrower. A guarantor or a mortgagor, who has mortgaged its property to secure the repayment of the loan, stands on the same footing as a borrower and if he wants to file an appeal, he must comply with the terms of Section 18 of the SARFAESI Act. 10. Furthermore, we may add that the High Court has no powers akin to powers vested in this Court under Article 142 of the Constitution. The High Court cannot give directions which are contrary to law.
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7. We may make it clear that we are not going into the merits of the case in view of the fact that we agree with the High Court that the matter must be decided by the DRAT8. In view of the law laid down by this Court, we are clearly of the view that the observation made by the High Court was totally incorrect9. We are not in agreement with the submission of Mr. Chaudhri that the High Court has exercised its discretionary powers under Article 226 of the Constitution. The order of the High Court does not show any exercise of such discretionary powers but according to the High Court on an interpretation of the Section, pre¬deposit was not required. We are also not impressed with the argument of Mr. Chaudhri that his client is not a borrower. A guarantor or a mortgagor, who has mortgaged its property to secure the repayment of the loan, stands on the same footing as a borrower and if he wants to file an appeal, he must comply with the terms of Section 18 of the SARFAESI Act10. Furthermore, we may add that the High Court has no powers akin to powers vested in this Court under Article 142 of the Constitution. The High Court cannot give directions which are contrary to lawThis Court in the case of Narayan Chandra Ghosh vs. UCO Bank & Ors.(2011) 4 SCC 548 , held that keeping in view the language of the Section even if the amount or debt due had not been determined by the DRT, the appeal could not be entertained by the DRAT without insisting on pre-deposit. The DRAT, at best could, after recording the reasons, have reduced the amount to 25% but could not have totally waived the deposit. This Court also held that the right of appeal conferred under Section 18(1) is subject to the conditions laid down in the second proviso therein which postulates that no appeal shall be entertained unless the borrower has deposited 50% of the amount of debt due from him as claimed by the secured creditors or determined by the DRT, whichever is less. The third proviso enables the DRAT, for reasons to be recorded in writing, to reduce the amount of deposit to not less than 25%. The following observations of this Court are relevant:7…Thus, there is an absolute bar to the entertainment of an appeal under Section 18 of the Act unless the condition precedent, as stipulated, is fulfilled. Unless the borrower makes, with the Appellate Tribunal, a pre¬ deposit of fifty per cent of the debt due from him or determined, an appeal under the said provision cannot be entertained by the Appellate Tribunal. The language of the said proviso is clear and admits of no ambiguity.
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M.P. State Road Transport Corporation Vs. M.P. Electricity Board & Another | law and therefore the application for condonation of delay was also filed. The ground mentioned in the said cross objections is that alongwith the notice of appeal the copy of the memo of appeal was not received and therefore the same could not be filed within time. 15. Perusal of various order sheets shows that no such objection was taken by the Counsel for the respondent No.1 and apart from this the notice of appeal which was sent to the respondent No.1 clearly mentions that the memo of appeal is also enclosed alongwith the said notice. There is no reason to disbelieve this fact. Under the facts and circumstances the cross objections of the respondent No.1 as also its application for condonation of delay (I.A.No.347/86) are hereby dismissed and rejected. 16. Now I proceed to decided the appeal by which as mentioned above the total amount of Rs.23374/- has been awarded to the respondent-No.1-Board. Ex.C.1 and C.2 are the reports of the Surveyor M/s. Prakash and Co., Dhar road, Indore and C.10 is his bill of fees and expenses for conducting the said report. They had inspected the truck after the accident. Perusal of the same shows that the Surveyor had prepared a detailed report of the damages to the truck that had taken place in the said accident. 17. Hari Prasad (AW4) Assistant Engineer was examined on behalf of the respondent No.1 who has proved the bills and vouchers which have been marked as Annexure C.14 to C.21. Some of the work was conducted by Mohan Lal (AW5) who has also proved some payments which were made to him. B.B. Sinha (AW3) was working as Divisional Engineer who has deposed with regard to the general damages to the vehicle and has also proved the Surveyors report. 18. There is no reason to disbelieve these witnesses from critical examination of these witnesses it is clearly established that the respondent No.1 Board had actually incurred much more loss than what has been decreed in its favour. The claims Tribunal has found it proved that a total amount of Rs.29,897/- has already been incurred in getting the truck-in-question repaired and further amount of Rs.1012.50 has been spent towards Surveyors charges and Rs.256/- towards notice charges. 19. Now the next question comes for consideration is with regard to determination of the percentage of liability and the percentage of the contributory negligence of both the drivers. 20. Perusal of the evidence of Mangilal (NAW2) the driver of the Bus of the Corporation shows that there are major contradictions in his statement. He has not come forward with a consistent story and therefore it is difficult to believe his evidence that he was driving the said Bus cautiously and carefully. He had also been negligent in driving the vehicle at the relevant point of time. 21. Similar is the evidence of Kamalsingh (NAW1) who happened to be a police constable and was travelling in the said Bus at the relevant point of time. But he has also admitted in his evidence that he cannot say at what speed both the vehicles were going at the relevant point of time. For this reasons also the Claims Tribunal has correctly held that greater percentage of negligence is that of the driver of the appellant Corporation and lesser percentage of the negligence is that of the driver of the truck of the Board. 22. The evidence of Ramesh (AW1) the driver off the truck and Chhotelal (AW2) who was travelling in the said truck appears to be more trust-worthy and reliable. Cumulative effect of all the evidence adduced by the parties on the point of negligence establishes that the said accident had occurred on account of rash and negligent driving of the Bus by its driver Mangilal but it certainly does not mean that the driver of the truck can be absolved from his liability. 23. What may constitute negligence shall certainly very from case to case and the circumstances or conditions under which a particular accident takes place. All the attending and surrounding facts and circumstances have to be taken into consideration while coming and deciding the question of negligence. When there is any head on collision it is generally presumed that it is on account of contributory negligence for the simple reason that both the drivers are able to see each other and if they so then the said accident can be averted. The Claims Tribunal has also very critically examined the evidence of eye witnesses as well as that both the drivers and then has come to the conclusion that the driver of the Bus of the Corporation was responsible for the extent of 75%; whereas the driver of the truck of the Board was liable to the extent of 25% only. There is no reason to come to a different conclusion than that has already been arrived at by the learned Claims Tribunal. 24. It has also been argued half heartedly that Ramesh (AW1) driver of the truck was not holding a valid license. But no such defence has been taken by the Corporation in its written statement. Similarly the authority of Shri B.B. Sinha was has signed and verified the petition was also challenged but no such defence has been taken in the written statement of the Corporation. Therefore both these objections are rejected. 25. It has also been argued that vouchers and balls have not been proved properly inasmuch as the persons to whom the payments were made have not been examined. 26. In such type of cases where the claims petitions are to be decided on summary trial basis the strict proof of each and every document as required under the Evidence Act is not contemplated. However, the said vouchers and bills have sufficiently been proved by Hari Prasad (AW4) and Mohanlal (AW5). Apart from this in the said bills and vouchers the truck number tallies with the truck of the accident vehicle. Therefore there is no reason to disbelieve this. | 0[ds]12. I have heard the learned Counsel for the parties at length and have also perused the record of the case. As far as counter claim is concerned the Claims Tribunal has rightly rejected the same as the appellant had led no evidence o substantiate its stand for such claim. The Claims Tribunal also held that no questions in this regard were put by it in the cross examination of the witnesses of the Board and accordingly the Counsel for the Corporation had also plainly admitted that this aspect is not proved at all. Hence, their counter claim was dismissed and rejected13. Shri Dhupar who appeared for then also rightly conceded that in absence of any evidence to substantiate the counter claim as made by the Corporation before the Claims Tribunal, it shall be extremely difficult for him to attack the same and therefore he also did not press it. I, accordingly hold that the counter claim of the appellant was rightly rejected and nothing can therefore be awarded to the appellant for the alleged damages14. As regards cross objections are concerned, a perusal of the order sheet shall show that the same was not filed within the time granted under the law and therefore the application for condonation of delay was also filed. The ground mentioned in the said cross objections is that alongwith the notice of appeal the copy of the memo of appeal was not received and therefore the same could not be filed within time15. Perusal of various order sheets shows that no such objection was taken by the Counsel for the respondent No.1 and apart from this the notice of appeal which was sent to the respondent No.1 clearly mentions that the memo of appeal is also enclosed alongwith the said notice. There is no reason to disbelieve this fact. Under the facts and circumstances the cross objections of the respondent No.1 as also its application for condonation of delay (I.A.No.347/86) are hereby dismissed and rejected16. Now I proceed to decided the appeal by which as mentioned above the total amount of Rs.23374/. Ex.C.1 and C.2 are the reports of the Surveyor M/s. Prakash and Co., Dhar road, Indore and C.10 is his bill of fees and expenses for conducting the said report. They had inspected the truck after the accident. Perusal of the same shows that the Surveyor had prepared a detailed report of the damages to the truck that had taken place in the said accident17. Hari Prasad (AW4) Assistant Engineer was examined on behalf of the respondent No.1 who has proved the bills and vouchers which have been marked as Annexure C.14 to C.21. Some of the work was conducted by Mohan Lal (AW5) who has also proved some payments which were made to him. B.B. Sinha (AW3) was working as Divisional Engineer who has deposed with regard to the general damages to the vehicle and has also proved the Surveyors report18. There is no reason to disbelieve these witnesses from critical examination of these witnesses it is clearly established that the respondent No.1 Board had actually incurred much more loss than what has been decreed in its favour. The claims Tribunal has found it proved that a total amount of Rs.29,897/has already been incurred in getting then repaired and further amount of Rs.1012.50 has been spent towards Surveyors charges and Rs.256/20. Perusal of the evidence of Mangilal (NAW2) the driver of the Bus of the Corporation shows that there are major contradictions in his statement. He has not come forward with a consistent story and therefore it is difficult to believe his evidence that he was driving the said Bus cautiously and carefully. He had also been negligent in driving the vehicle at the relevant point of time21. Similar is the evidence of Kamalsingh (NAW1) who happened to be a police constable and was travelling in the said Bus at the relevant point of time. But he has also admitted in his evidence that he cannot say at what speed both the vehicles were going at the relevant point of time. For this reasons also the Claims Tribunal has correctly held that greater percentage of negligence is that of the driver of the appellant Corporation and lesser percentage of the negligence is that of the driver of the truck of the Board22. The evidence of Ramesh (AW1) the driver off the truck and Chhotelal (AW2) who was travelling in the said truck appears to be morey and reliable. Cumulative effect of all the evidence adduced by the parties on the point of negligence establishes that the said accident had occurred on account of rash and negligent driving of the Bus by its driver Mangilal but it certainly does not mean that the driver of the truck can be absolved from his liability23. What may constitute negligence shall certainly very from case to case and the circumstances or conditions under which a particular accident takes place. All the attending and surrounding facts and circumstances have to be taken into consideration while coming and deciding the question of negligence. When there is any head on collision it is generally presumed that it is on account of contributory negligence for the simple reason that both the drivers are able to see each other and if they so then the said accident can be averted. The Claims Tribunal has also very critically examined the evidence of eye witnesses as well as that both the drivers and then has come to the conclusion that the driver of the Bus of the Corporation was responsible for the extent of 75%; whereas the driver of the truck of the Board was liable to the extent of 25% only. There is no reason to come to a different conclusion than that has already been arrived at by the learned Claims Tribunal24. It has also been argued half heartedly that Ramesh (AW1) driver of the truck was not holding a valid license. But no such defence has been taken by the Corporation in its written statement. Similarly the authority of Shri B.B. Sinha was has signed and verified the petition was also challenged but no such defence has been taken in the written statement of the Corporation. Therefore both these objections are rejected25. It has also been argued that vouchers and balls have not been proved properly inasmuch as the persons to whom the payments were made have not been examined26. In such type of cases where the claims petitions are to be decided on summary trial basis the strict proof of each and every document as required under the Evidence Act is not contemplated. However, the said vouchers and bills have sufficiently been proved by Hari Prasad (AW4) and Mohanlal (AW5). Apart from this in the said bills and vouchers the truck number tallies with the truck of the accident vehicle. Therefore there is no reason to disbelieve this. | 0 | 2,271 | 1,233 | ### Instruction:
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law and therefore the application for condonation of delay was also filed. The ground mentioned in the said cross objections is that alongwith the notice of appeal the copy of the memo of appeal was not received and therefore the same could not be filed within time. 15. Perusal of various order sheets shows that no such objection was taken by the Counsel for the respondent No.1 and apart from this the notice of appeal which was sent to the respondent No.1 clearly mentions that the memo of appeal is also enclosed alongwith the said notice. There is no reason to disbelieve this fact. Under the facts and circumstances the cross objections of the respondent No.1 as also its application for condonation of delay (I.A.No.347/86) are hereby dismissed and rejected. 16. Now I proceed to decided the appeal by which as mentioned above the total amount of Rs.23374/- has been awarded to the respondent-No.1-Board. Ex.C.1 and C.2 are the reports of the Surveyor M/s. Prakash and Co., Dhar road, Indore and C.10 is his bill of fees and expenses for conducting the said report. They had inspected the truck after the accident. Perusal of the same shows that the Surveyor had prepared a detailed report of the damages to the truck that had taken place in the said accident. 17. Hari Prasad (AW4) Assistant Engineer was examined on behalf of the respondent No.1 who has proved the bills and vouchers which have been marked as Annexure C.14 to C.21. Some of the work was conducted by Mohan Lal (AW5) who has also proved some payments which were made to him. B.B. Sinha (AW3) was working as Divisional Engineer who has deposed with regard to the general damages to the vehicle and has also proved the Surveyors report. 18. There is no reason to disbelieve these witnesses from critical examination of these witnesses it is clearly established that the respondent No.1 Board had actually incurred much more loss than what has been decreed in its favour. The claims Tribunal has found it proved that a total amount of Rs.29,897/- has already been incurred in getting the truck-in-question repaired and further amount of Rs.1012.50 has been spent towards Surveyors charges and Rs.256/- towards notice charges. 19. Now the next question comes for consideration is with regard to determination of the percentage of liability and the percentage of the contributory negligence of both the drivers. 20. Perusal of the evidence of Mangilal (NAW2) the driver of the Bus of the Corporation shows that there are major contradictions in his statement. He has not come forward with a consistent story and therefore it is difficult to believe his evidence that he was driving the said Bus cautiously and carefully. He had also been negligent in driving the vehicle at the relevant point of time. 21. Similar is the evidence of Kamalsingh (NAW1) who happened to be a police constable and was travelling in the said Bus at the relevant point of time. But he has also admitted in his evidence that he cannot say at what speed both the vehicles were going at the relevant point of time. For this reasons also the Claims Tribunal has correctly held that greater percentage of negligence is that of the driver of the appellant Corporation and lesser percentage of the negligence is that of the driver of the truck of the Board. 22. The evidence of Ramesh (AW1) the driver off the truck and Chhotelal (AW2) who was travelling in the said truck appears to be more trust-worthy and reliable. Cumulative effect of all the evidence adduced by the parties on the point of negligence establishes that the said accident had occurred on account of rash and negligent driving of the Bus by its driver Mangilal but it certainly does not mean that the driver of the truck can be absolved from his liability. 23. What may constitute negligence shall certainly very from case to case and the circumstances or conditions under which a particular accident takes place. All the attending and surrounding facts and circumstances have to be taken into consideration while coming and deciding the question of negligence. When there is any head on collision it is generally presumed that it is on account of contributory negligence for the simple reason that both the drivers are able to see each other and if they so then the said accident can be averted. The Claims Tribunal has also very critically examined the evidence of eye witnesses as well as that both the drivers and then has come to the conclusion that the driver of the Bus of the Corporation was responsible for the extent of 75%; whereas the driver of the truck of the Board was liable to the extent of 25% only. There is no reason to come to a different conclusion than that has already been arrived at by the learned Claims Tribunal. 24. It has also been argued half heartedly that Ramesh (AW1) driver of the truck was not holding a valid license. But no such defence has been taken by the Corporation in its written statement. Similarly the authority of Shri B.B. Sinha was has signed and verified the petition was also challenged but no such defence has been taken in the written statement of the Corporation. Therefore both these objections are rejected. 25. It has also been argued that vouchers and balls have not been proved properly inasmuch as the persons to whom the payments were made have not been examined. 26. In such type of cases where the claims petitions are to be decided on summary trial basis the strict proof of each and every document as required under the Evidence Act is not contemplated. However, the said vouchers and bills have sufficiently been proved by Hari Prasad (AW4) and Mohanlal (AW5). Apart from this in the said bills and vouchers the truck number tallies with the truck of the accident vehicle. Therefore there is no reason to disbelieve this.
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I, accordingly hold that the counter claim of the appellant was rightly rejected and nothing can therefore be awarded to the appellant for the alleged damages14. As regards cross objections are concerned, a perusal of the order sheet shall show that the same was not filed within the time granted under the law and therefore the application for condonation of delay was also filed. The ground mentioned in the said cross objections is that alongwith the notice of appeal the copy of the memo of appeal was not received and therefore the same could not be filed within time15. Perusal of various order sheets shows that no such objection was taken by the Counsel for the respondent No.1 and apart from this the notice of appeal which was sent to the respondent No.1 clearly mentions that the memo of appeal is also enclosed alongwith the said notice. There is no reason to disbelieve this fact. Under the facts and circumstances the cross objections of the respondent No.1 as also its application for condonation of delay (I.A.No.347/86) are hereby dismissed and rejected16. Now I proceed to decided the appeal by which as mentioned above the total amount of Rs.23374/. Ex.C.1 and C.2 are the reports of the Surveyor M/s. Prakash and Co., Dhar road, Indore and C.10 is his bill of fees and expenses for conducting the said report. They had inspected the truck after the accident. Perusal of the same shows that the Surveyor had prepared a detailed report of the damages to the truck that had taken place in the said accident17. Hari Prasad (AW4) Assistant Engineer was examined on behalf of the respondent No.1 who has proved the bills and vouchers which have been marked as Annexure C.14 to C.21. Some of the work was conducted by Mohan Lal (AW5) who has also proved some payments which were made to him. B.B. Sinha (AW3) was working as Divisional Engineer who has deposed with regard to the general damages to the vehicle and has also proved the Surveyors report18. There is no reason to disbelieve these witnesses from critical examination of these witnesses it is clearly established that the respondent No.1 Board had actually incurred much more loss than what has been decreed in its favour. The claims Tribunal has found it proved that a total amount of Rs.29,897/has already been incurred in getting then repaired and further amount of Rs.1012.50 has been spent towards Surveyors charges and Rs.256/20. Perusal of the evidence of Mangilal (NAW2) the driver of the Bus of the Corporation shows that there are major contradictions in his statement. He has not come forward with a consistent story and therefore it is difficult to believe his evidence that he was driving the said Bus cautiously and carefully. He had also been negligent in driving the vehicle at the relevant point of time21. Similar is the evidence of Kamalsingh (NAW1) who happened to be a police constable and was travelling in the said Bus at the relevant point of time. But he has also admitted in his evidence that he cannot say at what speed both the vehicles were going at the relevant point of time. For this reasons also the Claims Tribunal has correctly held that greater percentage of negligence is that of the driver of the appellant Corporation and lesser percentage of the negligence is that of the driver of the truck of the Board22. The evidence of Ramesh (AW1) the driver off the truck and Chhotelal (AW2) who was travelling in the said truck appears to be morey and reliable. Cumulative effect of all the evidence adduced by the parties on the point of negligence establishes that the said accident had occurred on account of rash and negligent driving of the Bus by its driver Mangilal but it certainly does not mean that the driver of the truck can be absolved from his liability23. What may constitute negligence shall certainly very from case to case and the circumstances or conditions under which a particular accident takes place. All the attending and surrounding facts and circumstances have to be taken into consideration while coming and deciding the question of negligence. When there is any head on collision it is generally presumed that it is on account of contributory negligence for the simple reason that both the drivers are able to see each other and if they so then the said accident can be averted. The Claims Tribunal has also very critically examined the evidence of eye witnesses as well as that both the drivers and then has come to the conclusion that the driver of the Bus of the Corporation was responsible for the extent of 75%; whereas the driver of the truck of the Board was liable to the extent of 25% only. There is no reason to come to a different conclusion than that has already been arrived at by the learned Claims Tribunal24. It has also been argued half heartedly that Ramesh (AW1) driver of the truck was not holding a valid license. But no such defence has been taken by the Corporation in its written statement. Similarly the authority of Shri B.B. Sinha was has signed and verified the petition was also challenged but no such defence has been taken in the written statement of the Corporation. Therefore both these objections are rejected25. It has also been argued that vouchers and balls have not been proved properly inasmuch as the persons to whom the payments were made have not been examined26. In such type of cases where the claims petitions are to be decided on summary trial basis the strict proof of each and every document as required under the Evidence Act is not contemplated. However, the said vouchers and bills have sufficiently been proved by Hari Prasad (AW4) and Mohanlal (AW5). Apart from this in the said bills and vouchers the truck number tallies with the truck of the accident vehicle. Therefore there is no reason to disbelieve this.
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State Of U.P. Vs. Daulat Ram Gupta | the State government or Licensing Authority under sub-clause (6) of Clause 16 of the Statutory Order, it is necessary to look into the provisions of sub-clause (6) of Clause 16 of the Statutory Order which runs as under: "(6) Every dealer shall comply with the general or special directions not inconsistent with this order that may be given to him in writing by the State Government, the Commissioner, Food and Civil Supplies or the Collector for the purpose of giving effect to the provisions of this Order and any contravention of such directions shall be deemed to a contravention of this Order." 14. A perusal of sub-clause (6) shows that it enables the making of an order or issuing of direction by the executive. In exercise of that power, the State government, the Commissioner, Food and Civil Supplies or the Collector are empowered to issue a general or special direction to any dealer, which is not inconsistent with the provisions of the Statutory Order, only for giving effect to the provisions of the Statutory Order. Thus, there are two restrictions on the power of the State government or a Licensing Authority while issuing a general or special direction - firstly, such a direction should not be inconsistent with the Statutory Order and secondly, such direction can be issued only for purposes of giving effect to the provisions of the Statutory Order. In that view of the matter any direction issued under sub-clause (6) of Clause 16 must show that it complies with the description of delegation of power to issue directions. 15. In Blacks Law Dictionary the expression "inconsistent" means lacking consistency; not compatible with. Viewed in this light, the nature and extent of power of the State government or a Licensing Authority possessed under sub-clause (6) is to issue directions only in conformity with the Statutory Order. In other words, the direction so issued by the State government or Licensing Authority must be compatible with the provisions of the Statutory Order. The State Govt. or the Licensing Authority in the exercise of delegated powers to issue direction cannot make provisions which are consistent with the Statutory Order. Since the power to issue directions by the State government or any other specified authorities must not be inconsistent with the Statutory Order, the same must be held to be beyond the enabling provisions of the Statutory Order. It must be remembered that the power to issue directions is derived from sub-clause (6) of Clause 16 of the Statutory Order and a delegatee on whom such a power is conferred is required to act within the frame work of the authority conferred by the Statutory Order. Since the direction issued by the Licensing Authority that the licence of the respondent shall not be renewed on the premise that his place of business falls within a radius of 5 kms. of retail outlet of a government run oil company being not in conformity with the provisions of the Statutory Order, it must be held to be inconsistent to the provisions of the Statutory Order. 16. Coming to the second restriction on the power of the State government or the specified authorities, the provisions empowering them to issue directions to dealers could be exercised only to give effect to the provisions of the Statutory Order and further to effectuate the object behind the Statutory Order if the object is discernable in the Statutory Order. The nature of directions which could be issued under the enabling provisions contained in sub-clause (6) of Clause 16 of the Statutory Order, is only for purposes of giving effect to the Statutory Order and not otherwise. The conditions of grant of licence and its renewal are the essential features of the Statutory Order and in guise of issuing directions, the State government or a Licensing Authority cannot supplant the provisions of the Statutory Order, but can supplement it only with a view to give effect to the provisions of the Statutory Order. The State government or the Licensing Authority while giving effect to the provisions of the Statutory Order is not authorised to amend the Statutory Order by issuing directions. Once the enabling provisions restrict the power of issuing direction only for giving effect to the provisions of the Statutory Order, the nature and extent of direction which the State government or any authority specified therein are empowered to issue is confined to the area which is marked out by the Statutory Order. In the present case what we find is that the Licensing Authority while issuing the direction that the respondents licence shall not be renewed on the premise that his place of business falls within a radius of 5 kms. of a retail outlet of government run oil company has, in fact, purported to amend the conditions of renewal of licence granted under the Statutory Order which was not permissible under sub-clause (6) of Clause 16 of the Statutory Order. 17. We have already noticed that the provisions of the Statutory Order do not provide for refusal to renew a licence granted under the Statutory Order, if the place of business of a licensee falls within a radius of 5 kms. of a government run retail outlet. Further, the Statutory Order neither expressly nor by necessary implications prohibit the grant of licence to a person or refusal to renew such a licence if the place of business of such licensee falls within the radius of 5 kms. of a government run retail outlet. In that view of the matter, the direction/order issued by the Licensing Authority refusing to renew the licence of the respondent was inconsistent with the provisions of the Statutory Order inasmuch as the same was not for purposes for giving effect to the Statutory Order and, therefore, such a direction/order could not have given effect to, while considering the renewal of licence of the respondent herein. 18. For the aforesaid reasons, we are in agreement with the view taken by the High Court. Consequently, | 0[ds]It is, therefore, manifest from the provisions of the Statutory Order that in so far as conditions of grant of licence for sale of Diesel Oil and its renewal are concerned, the Statutory Order is a complete code in itself and there is no provision in the Statutory Order under which a Licensing Authority could refuse to renew a licence if licensees place of business falls within a radius of 5 kms. of a government run retailhave already noticed that the provisions of the Statutory Order do not provide for refusal to renew a licence granted under the Statutory Order, if the place of business of a licensee falls within a radius of 5 kms. of a government run retail outlet. Further, the Statutory Order neither expressly nor by necessary implications prohibit the grant of licence to a person or refusal to renew such a licence if the place of business of such licensee falls within the radius of 5 kms. of a government run retail outlet. In that view of the matter, the direction/order issued by the Licensing Authority refusing to renew the licence of the respondent was inconsistent with the provisions of the Statutory Order inasmuch as the same was not for purposes for giving effect to the Statutory Order and, therefore, such a direction/order could not have given effect to, while considering the renewal of licence of the respondentare in agreement with the view taken by the High Court. | 0 | 3,067 | 261 | ### Instruction:
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the State government or Licensing Authority under sub-clause (6) of Clause 16 of the Statutory Order, it is necessary to look into the provisions of sub-clause (6) of Clause 16 of the Statutory Order which runs as under: "(6) Every dealer shall comply with the general or special directions not inconsistent with this order that may be given to him in writing by the State Government, the Commissioner, Food and Civil Supplies or the Collector for the purpose of giving effect to the provisions of this Order and any contravention of such directions shall be deemed to a contravention of this Order." 14. A perusal of sub-clause (6) shows that it enables the making of an order or issuing of direction by the executive. In exercise of that power, the State government, the Commissioner, Food and Civil Supplies or the Collector are empowered to issue a general or special direction to any dealer, which is not inconsistent with the provisions of the Statutory Order, only for giving effect to the provisions of the Statutory Order. Thus, there are two restrictions on the power of the State government or a Licensing Authority while issuing a general or special direction - firstly, such a direction should not be inconsistent with the Statutory Order and secondly, such direction can be issued only for purposes of giving effect to the provisions of the Statutory Order. In that view of the matter any direction issued under sub-clause (6) of Clause 16 must show that it complies with the description of delegation of power to issue directions. 15. In Blacks Law Dictionary the expression "inconsistent" means lacking consistency; not compatible with. Viewed in this light, the nature and extent of power of the State government or a Licensing Authority possessed under sub-clause (6) is to issue directions only in conformity with the Statutory Order. In other words, the direction so issued by the State government or Licensing Authority must be compatible with the provisions of the Statutory Order. The State Govt. or the Licensing Authority in the exercise of delegated powers to issue direction cannot make provisions which are consistent with the Statutory Order. Since the power to issue directions by the State government or any other specified authorities must not be inconsistent with the Statutory Order, the same must be held to be beyond the enabling provisions of the Statutory Order. It must be remembered that the power to issue directions is derived from sub-clause (6) of Clause 16 of the Statutory Order and a delegatee on whom such a power is conferred is required to act within the frame work of the authority conferred by the Statutory Order. Since the direction issued by the Licensing Authority that the licence of the respondent shall not be renewed on the premise that his place of business falls within a radius of 5 kms. of retail outlet of a government run oil company being not in conformity with the provisions of the Statutory Order, it must be held to be inconsistent to the provisions of the Statutory Order. 16. Coming to the second restriction on the power of the State government or the specified authorities, the provisions empowering them to issue directions to dealers could be exercised only to give effect to the provisions of the Statutory Order and further to effectuate the object behind the Statutory Order if the object is discernable in the Statutory Order. The nature of directions which could be issued under the enabling provisions contained in sub-clause (6) of Clause 16 of the Statutory Order, is only for purposes of giving effect to the Statutory Order and not otherwise. The conditions of grant of licence and its renewal are the essential features of the Statutory Order and in guise of issuing directions, the State government or a Licensing Authority cannot supplant the provisions of the Statutory Order, but can supplement it only with a view to give effect to the provisions of the Statutory Order. The State government or the Licensing Authority while giving effect to the provisions of the Statutory Order is not authorised to amend the Statutory Order by issuing directions. Once the enabling provisions restrict the power of issuing direction only for giving effect to the provisions of the Statutory Order, the nature and extent of direction which the State government or any authority specified therein are empowered to issue is confined to the area which is marked out by the Statutory Order. In the present case what we find is that the Licensing Authority while issuing the direction that the respondents licence shall not be renewed on the premise that his place of business falls within a radius of 5 kms. of a retail outlet of government run oil company has, in fact, purported to amend the conditions of renewal of licence granted under the Statutory Order which was not permissible under sub-clause (6) of Clause 16 of the Statutory Order. 17. We have already noticed that the provisions of the Statutory Order do not provide for refusal to renew a licence granted under the Statutory Order, if the place of business of a licensee falls within a radius of 5 kms. of a government run retail outlet. Further, the Statutory Order neither expressly nor by necessary implications prohibit the grant of licence to a person or refusal to renew such a licence if the place of business of such licensee falls within the radius of 5 kms. of a government run retail outlet. In that view of the matter, the direction/order issued by the Licensing Authority refusing to renew the licence of the respondent was inconsistent with the provisions of the Statutory Order inasmuch as the same was not for purposes for giving effect to the Statutory Order and, therefore, such a direction/order could not have given effect to, while considering the renewal of licence of the respondent herein. 18. For the aforesaid reasons, we are in agreement with the view taken by the High Court. Consequently,
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It is, therefore, manifest from the provisions of the Statutory Order that in so far as conditions of grant of licence for sale of Diesel Oil and its renewal are concerned, the Statutory Order is a complete code in itself and there is no provision in the Statutory Order under which a Licensing Authority could refuse to renew a licence if licensees place of business falls within a radius of 5 kms. of a government run retailhave already noticed that the provisions of the Statutory Order do not provide for refusal to renew a licence granted under the Statutory Order, if the place of business of a licensee falls within a radius of 5 kms. of a government run retail outlet. Further, the Statutory Order neither expressly nor by necessary implications prohibit the grant of licence to a person or refusal to renew such a licence if the place of business of such licensee falls within the radius of 5 kms. of a government run retail outlet. In that view of the matter, the direction/order issued by the Licensing Authority refusing to renew the licence of the respondent was inconsistent with the provisions of the Statutory Order inasmuch as the same was not for purposes for giving effect to the Statutory Order and, therefore, such a direction/order could not have given effect to, while considering the renewal of licence of the respondentare in agreement with the view taken by the High Court.
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Tata Iron And Steel Co. Ltd Vs. The State Of Bihar (And Connected Appeals) | is hardly sufficient for the inference that they were outside the scope of the charging section. What is crucial and of sole relevance are the words and the width and scope of the charging provisions and if the appellants are within it, it matters little that cases such as these might not have been actually envisaged by the framers of the enactment.29. The learned Attorney-General sought aid from the rule of construction that there was no equity in a taxing statute and that unless the tax paper was squarely brought within the charging section, no tax could be imposed. In ultimate analysis this merely means that in the case of an ambiguity in the construction of a taxing statute in according to one construction a tax is leviable, while on another it is not, the taxpayer is entitled to the benefit of the doubt. In the view, however, that we entertain regarding the construction of the relevant provisions of the Act we consider there is no scope for the application of this rule of construction.30. It was further submitted to us that the Act was defective in that it did not provide any specific machinery for the type of cases now on hand and that owing to this lack of machinery there could be no imposition of the charge. In support of this proposition reliance was placed on the well known decision of the House of Lords in Colquhoun v. Brooks, (1889) 14 AC 493. We do not consider that there is force in this argument.We have already held on a construction of Ss. 5, 6 and 72 that where activities other than mere winning the ore are carried on by an assessee and there is a transaction of sale of the ultimate product and the profit, if any derived from the working of the mine is, so to speak, imbedded in the final realisation, a profit may accrue to the assessee from the mining operation which can be disintegrated and ascertained and a tax levied thereon. We are not here concerned with the manner in which this disintegration should take place or the components or items which would have to be taken into account in arriving at "the annual profit from the mine for the purpose of being brought to tax under Ss. 6 and 72. Those will be the subject-matter of enquiry by the relevant competent authorities by virtue of the order of remand passed by the Board of Revenue in these cases. As we have pointed out earlier, what we are concerned with in these appeals is merely whether there could in law be an annual profit from the mine in cases where the ore produced from the mine is sold not as ore but is utilised as the raw material for the manufacture of other products which are sold. When once it is conceded, as it has to be, that in order that profit may result from the mining activity it is not necessary that the ore should be the subject of sale in the same condition as it was when it came out of the mine, but that even if the won ore is subjected to processes to make it more useful or attractive to a buyer and then sold, there would be a profit, and that in the latter event the expenses of processing would be a legitimate outgoing for computing the profit, it appears to us to follow that if the ore is so processed as to turn it into a different commodity and then sold there would be no negation of the concept of "a profit" from the mine and the question would be only as regards the elimination of the further expenses involved and principles on which these could be ascertained. It is the function of the relevant assessing authorities to determine the annual profits in case of dispute and besides there is a residuary provision contained in S. 76 of the Act under which in cases where the Collector is unable to ascertain the annual net profits he may determine it on the basis of 6 per cent of the value of the mine. It is for these reasons that we are unable to accede to the submission that the charging provisions should be rejected as inane because of the want of an express machinery for determining the basis of apportionment in cases where the ore is sold not as ore but is converted into other products which are the subject of sale.31. The learned Attorney-General directed considerable criticism towards the reasoning of the judgment of the learned Judges of the High Court on which they based their conclusions and particularly the decisions upon which they relied in support of their conclusions. We consider it, however, unnecessary to deal with these since we are satisfied that, for the reasons stated already, the conclusion of the High Court that the case of the appellants was with the charging sections of the Act, is correct.32. Mr. B. C. Ghose-learned Counsel for the appellants in Civil Appeals Nos. 600, 601 of 1961while adopting the submissions of the learned Attorney- General on the main part of the case, submitted that as there was no market for copper -ore which was the product won by his clients, there could be no determination of the market price for the ore and hence no possibility of ascertaining the profit derived from the mining operation. We consider that this submission has no relevance in these appeals which are concerned not with ascertaining how the profit from a mining operation is to be determined, but solely with the legal point as to whether, where a mint-owner does not sell the ore as such but converts it into a finished product which he sells, there could in law be any profit from the mining operation. We therefore consider that the submission is not pertinent at the present stage and have refrained therefore from dealing with the merits of that contention. | 0[ds]The company was not assessed to the cess on the ore mined by it till 1926, when the company sold some quantity of iron ore extracted by it to the Bengal Iron and Steel Co. Ltd. and an assessment to cess under the Act was made against it in respect of that year. Even though it made no sales of iron ore in later years but utilised the ore extracted in its own factory, the company was assessed to and paid the cess on an assumed profit of 12 as per ton of iron ore mined by it uptoand from the next year onwards the profit was assumed to be a little higher, viz. at Re. 1/per ton. This basis of taxation was varied in the yearwhen it was raised to Rs. 1 4 /per ton by reason of an agreement between the company and the State Government. There were some variations in the basis of the rate at which the profit was computed during the succeeding years but it is unnecessary to detail them.4. Finally we come to the assessment in respect of the yearwith which the present appeals are concerned. For that year the company was assessed by the Cess Deputy Collector on the basis that it had made a profit of Rs. 4/7/per ton of iron ore extracted The company filed an appeal to the Deputy Commissioner and the ground urged by the company was that it was not at all liable to the levy of cess under the Act because it did not sell any ore as such and could not therefore be treated as having made "any profit from the mines" within the meaning of S. 6 of the Act. The Deputy Commissioner rejected this contention but considering that the Cess Deputy Collector had not adopted a proper basis for ascertaining the profits remanded the case for an enquiry as to the cost of extraction of iron ore and for the calculation of other working expenses. The company then filed a revision application to the Commissioner of the Chhota Nagpur Division raising the same point about itsto cess but when this was rejected, preferred a further revision to the Board of Revenue This application met with the same fate and thereafter the company moved the High Court of Patna by petitions under Arts. 226 and 227 of the Constitution for quashing the order of the Board of Revenue confirming the order of the Deputy Commissioner remanding the proceedings to the Cess Deputy Collector for enquiry for recomputing the net annual profits of the company for the year. The learned Judges of the High Court dismissed the Writ application but granted leave under Art. 133 of the Constitution. Civil Appeal 587 of 1961 is the appeal filed in pursuance of the certificate granted by the High Court. Civil Appeal 588 of 1961 is an appeal by special leave granted by this Court against the order of the Board of Revenue which was theof proceedings in the Writ Petition before the High Court. The material facts of the other appeals are similar and need not be set out. It is sufficient to add that the writ petitions of the other two appellants were dealt with by the High Court, along with the petition of the Tata Iron and Steel Co. Ltd. and disposed of by a common judgment. In the case of the other two appellants also the two appeals by each are one from the judgment of the High Court dismissing the relevant writ petition and the other from the order of the Board of Revenue.If return not furnished or incorrect, Collector to make valuation.If such return be not furnished within the period of two months from the date on which such notice was served, or within any extended time allowed by the Collector of the district or if such Collector shall deem that any return made in pursuance of such notice is untrue or incorrect, such Collector shall proceed to ascertain and determine by such ways or means as to him shall seem expedient the annual net profits of or the annual despatches of coal and coke from such property calculated asstated, the submission was this. Under S. 6, which has to be read with S. 72, the tax imposed by the Act is not a tax on the mine as a species of immovable property, but on the "annual net profits" derived from the mine. In order that a person may derive "profit" from a mine, the mine must be worked and the ore extracted, but even that by itself is insufficient. The extraction of the ore involves expenditure and "profits" could be said to be derived from the mine only when the extracted ore is sold and the amount realised by the sale of the ore is in excess of the cost of extracting the ore. A sale of the ore is thus an essential ingredient or a sine qua non for the emergence of a profit on which alone the cess is levied. Where, however, the ore extracted is not sold but is used by the owner in the production of other finished products there is no question of the owner of the ore realising a "profit" from the mine. In the case of an assessee like the appellants the business of winning the ore and of converting the ore won into a finished product is not by any means to be conceived of as made up of two distinct businesses conducted by them but only as a single integrated undertaking for the production of steel and steel products. Unless one could postulate first that the business of winning the ore was a separate business from that of converting the ore won into steel, and secondly could notionally treat the won ore as having been sold by the first business to the second, it would not be possible to conceive of any profit being derived from the working of the mine. He submitted that there was no factual basis for the first postulate, viz., that there were two separate businesses and secondly, even assuming that it were possible to separate the two activities in the course of which goods produced in one business were consumed in the other, still no "profit" can in law result by such use because "profits" could accrue only by the sale of the product and the consumption by the same individual of his own goods could not result in a "profit" because a person cannot sell to himself or trade with himself.8. A further submission that was made was that though the Act had made provision for the levy of a cess or rate based upon mere beneficial occupation without perception of rent from a third party occupier, in the case of "land", it had deliberately made no such provision for computing the beneficial occupation of mines such as the ones now under discussion and that this was itself an indication that without the actual receipt of "profit" a mere beneficial occupation of the mine was not sufficient to enable a charge to be imposed. There were a few other minor and ancillary points suggested, but we shall refer to them later.9. It would be convenient to deal with the above two submissions separately. So far as the main and the principal point which we have set out earlier is concerned, it is manifest that it hinges on the acceptance of the proposition that no "profit" accrues from a mine to an owner unless the ore extracted is sold by him to a third person and the somewhat related proposition that where a person carries on a multiple butan integrated activity that produces an entire profit,the total profits derived by him cannot be disintegrated and apportioned between the different activities unless the relevant statute under which the tax is imposed makes specific provision for suchconsider that the submission provides no answer to the problem before us. It matters little whether in technical language the charging section is S. 5 or Ss. 5, 6 and 72 read together. When once it is conceded, as it must be, that in the case of a mine there is no liability to pay the tax unless the mine were worked and the working produced a "profit", the question would still have to be answered as to whether the mine can be said to produce an "annual net profit" on the basis of which alone the cess could be levied when the ore won is not sold as such but it is converted into a finished product and is soldis not necessary to examine the scope of the maxim that a person cannot make a profit out of himself or ascertain whether the principle is subject to any exceptions. It might here be pointed out that it has been held by the House of Lords in Sharkey v. Wernher, 1956 Act 58, the, the general proposition that no one could trade with himself and make in its true sense or meaning taxable profit by dealing with himself and make in its true sense or meaning taxable profits by dealing with himself is not universally true and that there are situations in which a man could be said to make a profit out of the consumption of his own goods.However, as the principle underlying the decision of this Court in Kikabhai Premchands case, 1954 SCR 219: (AIR 1953 SC 509 ) runs counter to the decision of the House at Lords in 1956 AC 58, vice Commr. ofBombay v. Bai Shirinbai K. Kooka, C. A. No. 133 of 1958,(since reported in AIR 1963 SC 477 ), we are bound to proceed on the basis that on facts similar to those in Kikabhais case 1954 SCR 219 : (AIR 1953 SC 509 ) the principle applies and negatives the idea of a taxable profit emerging.17. It is, therefore, necessary to examine the precise scope of the decision in Kikabhais case, 1954 SCR 219: (AIR 1953 SC 509 ). The case arose under the IndianAct and the question related to the computation of the income and profits of a bullion merchant. The assessee had, during the accounting year, withdrawn some bullion from hisand transferred it to a trust which he had created. The assessee valued the bullion withdrawn at the price at which he had bought it, so that no profit was shown to have resulted to him by reason of the transfer of thistrade. This was objected to by Revenue whose contention was that the bullion withdrawn had to be valued at the market price of the commodity on the day of theus now analyse the concept underlying this situation. It could not, for instance, be that unless the mined ore was sold as it came out of the mine there could be no profit and that if the ore underwent any modification from the state in which it was when mined, say by being reduced to convenient sizes or by being broken up into small fragments or even pulverised, there could be no profit arising out of the sale of the ore so dressed. It is needless to add that in such a case the cost of the dressing or the pulverising for the market could be an item of expenditure which would have to be taken into account in ascertaining the profit from the sale of the ore. If one is right so far that profit could result from the sale of the mined ore so dressed up for the market, could there be any logic in the contention which denies the existence of profit from the mined ore when not the dressed ore but some product of the dressed ore is sold. No doubt where the mined ore undergoes some processing before it is marketed, the process being either cleaning or dressing etc., the processed product might continue to be commercially known as ore. But the question would then arise "Is it essential for a profit to result from the working of the mine that there should be an identity in a commercial sense between the commodity which is the subject of sale and the commodity which is won from the mine?" In other words, is it the position that if there is loss of that identity the concept of "a profit" arising from the production of that commodity also disappears? We find it difficult to appreciate the ratio behind the contention that if the mined ore is processed, and the processed product commercially goes under another name, because the processing results in extensive modifications of the raw material, then the sale of the finished product can in law yield no "profit " from the working of the mine.21. At this stage it is necessary to bear in mind a fact that what we have here is not a consumption in the sense of dissipation of the ore won as a result of which the commodity is entirely lost, as would be the case where, for instance, grain produced by an agriculturist is consumed in his ownbeing the very illustration referred to by Bose, J. in Kikabhai Premchands case, 1954 SCR 219: (AIR 1953 SC 509 ). The situation here is that there has been a sale of the end product and the contention is that notwithstanding the sale and the realisation of profit from the sale of that end product, there is no profit attributable to the product of the mine. In this connection the learnedreferred us to the decision of this Court in Dooars Tea Co. Ltd. v. The Commissioner of AgriculturalWest Bengal, C. A. No. 381 of 1960,(AIR 1962 SC 186 ). The question raised for decision was whether the value of bamboos, fuel timber, etc. grown by an assessee, but which were utilized by him for the purposes of his tea business could be taken into account in computing "his income, profits and gains" for the purposes of the Bengal AgriculturalAct. This Court held that it could be and that even if that item did not fall within the word "profits or gains", it was certainly "income "which was of wider import. It may be pointed out that the learned Judges did not expressly negative the item being "profits", and the decision is authority only in regard to the broad sweep of the expression "Income" in the statute theresupport of this submission, he drew attention to the parallel provisions of the Act in relation to the determination of " the annual value of lands" which was another item which along with the annual net profit from mines and quarries was brought to charge for the imposition of the cess under S.6. "Annual value" would, he said, have normally included only the profit derived from land, not the benefit accruing to the owner from his ownultimate analysis this merely means that in the case of an ambiguity in the construction of a taxing statute in according to one construction a tax is leviable, while on another it is not, the taxpayer is entitled to the benefit of the doubt. In the view, however, that we entertain regarding the construction of the relevant provisions of the Act we consider there is no scope for the application of this rule ofsupport of this proposition reliance was placed on the well known decision of the House of Lords in Colquhoun v. Brooks, (1889) 14 AC 493. We do not consider that there is force in this argument.We have already held on a construction of Ss. 5, 6 and 72 that where activities other than mere winning the ore are carried on by an assessee and there is a transaction of sale of the ultimate product and the profit, if any derived from the working of the mine is, so to speak, imbedded in the final realisation, a profit may accrue to the assessee from the mining operation which can be disintegrated and ascertained and a tax levied thereon. We are not here concerned with the manner in which this disintegration should take place or the components or items which would have to be taken into account in arriving at "the annual profit from the mine for the purpose of being brought to tax under Ss. 6 and 72. Those will be theof enquiry by the relevant competent authorities by virtue of the order of remand passed by the Board of Revenue in these cases. As we have pointed out earlier, what we are concerned with in these appeals is merely whether there could in law be an annual profit from the mine in cases where the ore produced from the mine is sold not as ore but is utilised as the raw material for the manufacture of other products which are sold. When once it is conceded, as it has to be, that in order that profit may result from the mining activity it is not necessary that the ore should be the subject of sale in the same condition as it was when it came out of the mine, but that even if the won ore is subjected to processes to make it more useful or attractive to a buyer and then sold, there would be a profit, and that in the latter event the expenses of processing would be a legitimate outgoing for computing the profit, it appears to us to follow that if the ore is so processed as to turn it into a different commodity and then sold there would be no negation of the concept of "a profit" from the mine and the question would be only as regards the elimination of the further expenses involved and principles on which these could be ascertained. It is the function of the relevant assessing authorities to determine the annual profits in case of dispute and besides there is a residuary provision contained in S. 76 of the Act under which in cases where the Collector is unable to ascertain the annual net profits he may determine it on the basis of 6 per cent of the value of the mine. It is for these reasons that we are unable to accede to the submission that the charging provisions should be rejected as inane because of the want of an express machinery for determining the basis of apportionment in cases where the ore is sold not as ore but is converted into other products which are the subject ofconsider it, however, unnecessary to deal with these since we are satisfied that, for the reasons stated already, the conclusion of the High Court that the case of the appellants was with the charging sections of the Act, is correct.We consider that this submission has no relevance in these appeals which are concerned not with ascertaining how the profit from a mining operation is to be determined, but solely with the legal point as to whether, where adoes not sell the ore as such but converts it into a finished product which he sells, there could in law be any profit from the mining operation. We therefore consider that the submission is not pertinent at the present stage and have refrained therefore from dealing with the merits of that contention. | 0 | 9,969 | 3,448 | ### Instruction:
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is hardly sufficient for the inference that they were outside the scope of the charging section. What is crucial and of sole relevance are the words and the width and scope of the charging provisions and if the appellants are within it, it matters little that cases such as these might not have been actually envisaged by the framers of the enactment.29. The learned Attorney-General sought aid from the rule of construction that there was no equity in a taxing statute and that unless the tax paper was squarely brought within the charging section, no tax could be imposed. In ultimate analysis this merely means that in the case of an ambiguity in the construction of a taxing statute in according to one construction a tax is leviable, while on another it is not, the taxpayer is entitled to the benefit of the doubt. In the view, however, that we entertain regarding the construction of the relevant provisions of the Act we consider there is no scope for the application of this rule of construction.30. It was further submitted to us that the Act was defective in that it did not provide any specific machinery for the type of cases now on hand and that owing to this lack of machinery there could be no imposition of the charge. In support of this proposition reliance was placed on the well known decision of the House of Lords in Colquhoun v. Brooks, (1889) 14 AC 493. We do not consider that there is force in this argument.We have already held on a construction of Ss. 5, 6 and 72 that where activities other than mere winning the ore are carried on by an assessee and there is a transaction of sale of the ultimate product and the profit, if any derived from the working of the mine is, so to speak, imbedded in the final realisation, a profit may accrue to the assessee from the mining operation which can be disintegrated and ascertained and a tax levied thereon. We are not here concerned with the manner in which this disintegration should take place or the components or items which would have to be taken into account in arriving at "the annual profit from the mine for the purpose of being brought to tax under Ss. 6 and 72. Those will be the subject-matter of enquiry by the relevant competent authorities by virtue of the order of remand passed by the Board of Revenue in these cases. As we have pointed out earlier, what we are concerned with in these appeals is merely whether there could in law be an annual profit from the mine in cases where the ore produced from the mine is sold not as ore but is utilised as the raw material for the manufacture of other products which are sold. When once it is conceded, as it has to be, that in order that profit may result from the mining activity it is not necessary that the ore should be the subject of sale in the same condition as it was when it came out of the mine, but that even if the won ore is subjected to processes to make it more useful or attractive to a buyer and then sold, there would be a profit, and that in the latter event the expenses of processing would be a legitimate outgoing for computing the profit, it appears to us to follow that if the ore is so processed as to turn it into a different commodity and then sold there would be no negation of the concept of "a profit" from the mine and the question would be only as regards the elimination of the further expenses involved and principles on which these could be ascertained. It is the function of the relevant assessing authorities to determine the annual profits in case of dispute and besides there is a residuary provision contained in S. 76 of the Act under which in cases where the Collector is unable to ascertain the annual net profits he may determine it on the basis of 6 per cent of the value of the mine. It is for these reasons that we are unable to accede to the submission that the charging provisions should be rejected as inane because of the want of an express machinery for determining the basis of apportionment in cases where the ore is sold not as ore but is converted into other products which are the subject of sale.31. The learned Attorney-General directed considerable criticism towards the reasoning of the judgment of the learned Judges of the High Court on which they based their conclusions and particularly the decisions upon which they relied in support of their conclusions. We consider it, however, unnecessary to deal with these since we are satisfied that, for the reasons stated already, the conclusion of the High Court that the case of the appellants was with the charging sections of the Act, is correct.32. Mr. B. C. Ghose-learned Counsel for the appellants in Civil Appeals Nos. 600, 601 of 1961while adopting the submissions of the learned Attorney- General on the main part of the case, submitted that as there was no market for copper -ore which was the product won by his clients, there could be no determination of the market price for the ore and hence no possibility of ascertaining the profit derived from the mining operation. We consider that this submission has no relevance in these appeals which are concerned not with ascertaining how the profit from a mining operation is to be determined, but solely with the legal point as to whether, where a mint-owner does not sell the ore as such but converts it into a finished product which he sells, there could in law be any profit from the mining operation. We therefore consider that the submission is not pertinent at the present stage and have refrained therefore from dealing with the merits of that contention.
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that there has been a sale of the end product and the contention is that notwithstanding the sale and the realisation of profit from the sale of that end product, there is no profit attributable to the product of the mine. In this connection the learnedreferred us to the decision of this Court in Dooars Tea Co. Ltd. v. The Commissioner of AgriculturalWest Bengal, C. A. No. 381 of 1960,(AIR 1962 SC 186 ). The question raised for decision was whether the value of bamboos, fuel timber, etc. grown by an assessee, but which were utilized by him for the purposes of his tea business could be taken into account in computing "his income, profits and gains" for the purposes of the Bengal AgriculturalAct. This Court held that it could be and that even if that item did not fall within the word "profits or gains", it was certainly "income "which was of wider import. It may be pointed out that the learned Judges did not expressly negative the item being "profits", and the decision is authority only in regard to the broad sweep of the expression "Income" in the statute theresupport of this submission, he drew attention to the parallel provisions of the Act in relation to the determination of " the annual value of lands" which was another item which along with the annual net profit from mines and quarries was brought to charge for the imposition of the cess under S.6. "Annual value" would, he said, have normally included only the profit derived from land, not the benefit accruing to the owner from his ownultimate analysis this merely means that in the case of an ambiguity in the construction of a taxing statute in according to one construction a tax is leviable, while on another it is not, the taxpayer is entitled to the benefit of the doubt. In the view, however, that we entertain regarding the construction of the relevant provisions of the Act we consider there is no scope for the application of this rule ofsupport of this proposition reliance was placed on the well known decision of the House of Lords in Colquhoun v. Brooks, (1889) 14 AC 493. We do not consider that there is force in this argument.We have already held on a construction of Ss. 5, 6 and 72 that where activities other than mere winning the ore are carried on by an assessee and there is a transaction of sale of the ultimate product and the profit, if any derived from the working of the mine is, so to speak, imbedded in the final realisation, a profit may accrue to the assessee from the mining operation which can be disintegrated and ascertained and a tax levied thereon. We are not here concerned with the manner in which this disintegration should take place or the components or items which would have to be taken into account in arriving at "the annual profit from the mine for the purpose of being brought to tax under Ss. 6 and 72. Those will be theof enquiry by the relevant competent authorities by virtue of the order of remand passed by the Board of Revenue in these cases. As we have pointed out earlier, what we are concerned with in these appeals is merely whether there could in law be an annual profit from the mine in cases where the ore produced from the mine is sold not as ore but is utilised as the raw material for the manufacture of other products which are sold. When once it is conceded, as it has to be, that in order that profit may result from the mining activity it is not necessary that the ore should be the subject of sale in the same condition as it was when it came out of the mine, but that even if the won ore is subjected to processes to make it more useful or attractive to a buyer and then sold, there would be a profit, and that in the latter event the expenses of processing would be a legitimate outgoing for computing the profit, it appears to us to follow that if the ore is so processed as to turn it into a different commodity and then sold there would be no negation of the concept of "a profit" from the mine and the question would be only as regards the elimination of the further expenses involved and principles on which these could be ascertained. It is the function of the relevant assessing authorities to determine the annual profits in case of dispute and besides there is a residuary provision contained in S. 76 of the Act under which in cases where the Collector is unable to ascertain the annual net profits he may determine it on the basis of 6 per cent of the value of the mine. It is for these reasons that we are unable to accede to the submission that the charging provisions should be rejected as inane because of the want of an express machinery for determining the basis of apportionment in cases where the ore is sold not as ore but is converted into other products which are the subject ofconsider it, however, unnecessary to deal with these since we are satisfied that, for the reasons stated already, the conclusion of the High Court that the case of the appellants was with the charging sections of the Act, is correct.We consider that this submission has no relevance in these appeals which are concerned not with ascertaining how the profit from a mining operation is to be determined, but solely with the legal point as to whether, where adoes not sell the ore as such but converts it into a finished product which he sells, there could in law be any profit from the mining operation. We therefore consider that the submission is not pertinent at the present stage and have refrained therefore from dealing with the merits of that contention.
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Commissioner Of Income-Tax U.P. Lucknow Vs. M/S. Gangadhar Baijnath General Gang, Kanpur | that one of the rights that the assessee firm parted within under that agreement was the good-will of the company which is also a capital asset. Consequently compensation paid in respect of the same must also be considered as capital receipt.20. In our opinion the aforementioned arguments are fallacious. The managing agency rights vested with the Bagla Jaipuria and Co. Similar is the case so far as the good-will is concerned assuming that any good-will had been built up by that time. Bagla Jaipuria and Co. continues to be in existence.It had not parted with managing agency rights nor its good-will taken away. What has happened is that the partners representing the assessee firm in Bagla Jaiprua and Co. had surrendered their rights in the partnership to the remaining partners and obtained certain payments for surrendering their rights. This is not a case of parting with any agency rights. This is really a case of cancellation of a contract which had been entered into in the ordinary course of business. Such contracts are liable, in the ordinary course of business, to be altered or terminated on terms and any payment received in settlement of the rights as a result of the termination of the contract really represents the profits which the assessee would have made had the contract been performed. As observed by this Court in Jairam Valjis case, 35 ITR 148 = (AIR 1959 SC 291 ) (supra) :"When once it is found that a contract was entered into in the ordinary course of business, any compensation received for its termination would be a revenue receipt, irrespective of whether its performance was to consist of a single act or a series of acts spread over a period and in this respect, it differs from an agency agreement."21. As seen earlier no deed of partnership had been entered into. Therefore the same was terminable at will. Any of the partners of the firm could have brought the partnership to an end. Consequently the possibility of termination of a partnership of the type with which we are concerned is inherent in the very course of business.22. The facts set out in the statement of case show that the assessee firm had various business activities; one of its business activity was to join Bagla Jaipuria and Co. to carry on certain business activities. The assessees representatives by entering into that agreement were merely carrying on a trading activity. Such being the case, it is not possible to hold that the compensation paid for the termination of the contract is a capital receipt.23. It is not the case of the assessee that its only trading activity had come to an end. It had several activities. Just one of its trading activity had been put an end to. Hence the amount received cannot be considered as compensation for stopping its business.24. Now we come to the transfer of the selling agency to Bagla-Jaipuria and Co. This is not a right transferred under the agreement dated October 7, 1946. That right had been transferred to Bagla Jaipuria and Co. even at the time the partnership was formed. On October 7, 1946, the assessee was no more the owner of that selling agency. On that day it was an asset of Bagla Jaipuria and Co. Hence the compensation paid can only relate to the termination of the contract of partnership and not to the transfer of the selling agency. Assuming that agreement of October 7, 1946 has indirectly effected the selling agency right of the assessee, the same was one of the several trading activities of the assessee firm. On the basis of the material on record, the High Court held that after the Bagla Group gave up its interest in the Bagla Jaipuria and Co., the assessee firm with the aid of Rs. 35,01,000/- received as compensation acquired controlling shares in two others companies namely the India United Mills Ltd. and the Muir Mills Ltd. From this it is clear that the trading structure of the assessee firm was not affected. It merely replaced one trading activity by another.In Gilanders Arbuthnot and Co. Ltd. v. Commr. of Income-tax, Calcutta, (1964) 53 ITR 283 this Court held that in the case of an assessee having vast array of business including acquisition of agencies in the normal course of business, the determination of an individual agency is a normal incident not affecting or impairing its trading structure. In such cases the amount received for the cancellation of an agency does not represent the price paid for the loss of a capital asset; they were of the nature of income.25. In Kettlewell Bullen and Co. Ltd. v. Commr. of Income-tax Calcutta, 53 ITR 261 = (AIR 1965 SC 65 ) this Court after considering various decisions rendered by the Courts in U. K. and in this country about the principles which govern the determination of the nature of compensation received on the termination of an agency observed :"On an analysis of these cases which fall on two sides of the dividing line, a satisfactory measure of consistency in principle is disclosed. Where, on a consideration of the circumstances payment is made to compensate a person for cancellation of a contract which does not affect the trading structure of his business, nor deprive him of what is substance is his source of income, termination of the contract being a normal incident of the business and such cancellation leaves him free to carry on his trade (freed from the contract terminated) the receipt is revenue; where by the cancellation of an agency the trading structure of the assessee is impaired or such cancellation results in loss of what may be regarded as the source of the assessees income the payment made to compensate for cancellation of the agency agreement is normally a capital receipt".26. For the reasons mentioned above we hold that the entire sum of Rs. 35,01,000/- received by the assessee was a revenue receipt assessable under Section 10. | 0[ds]20. In our opinion the aforementioned arguments are fallacious. The managing agency rights vested with the Bagla Jaipuria and Co. Similar is the case so far as the good-will is concerned assuming that any good-will had been built up by that time. Bagla Jaipuria and Co. continues to be in existence.It had not parted with managing agency rights nor its good-will taken away. What has happened is that the partners representing the assessee firm in Bagla Jaiprua and Co. had surrendered their rights in the partnership to the remaining partners and obtained certain payments for surrendering their rights. This is not a case of parting with any agency rights. This is really a case of cancellation of a contract which had been entered into in the ordinary course of business. Such contracts are liable, in the ordinary course of business, to be altered or terminated on terms and any payment received in settlement of the rights as a result of the termination of the contract really represents the profits which the assessee would have made had the contract been performed. As observed by this Court in Jairam Valjis case, 35 ITR 148 = (AIR 1959 SC 291 ) (supra)once it is found that a contract was entered into in the ordinary course of business, any compensation received for its termination would be a revenue receipt, irrespective of whether its performance was to consist of a single act or a series of acts spread over a period and in this respect, it differs from an agency agreement.As seen earlier no deed of partnership had been entered into. Therefore the same was terminable at will. Any of the partners of the firm could have brought the partnership to an end. Consequently the possibility of termination of a partnership of the type with which we are concerned is inherent in the very course of business.22. The facts set out in the statement of case show that the assessee firm had various business activities; one of its business activity was to join Bagla Jaipuria and Co. to carry on certain business activities. The assessees representatives by entering into that agreement were merely carrying on a trading activity. Such being the case, it is not possible to hold that the compensation paid for the termination of the contract is a capital receipt.23. It is not the case of the assessee that its only trading activity had come to an end. It had several activities. Just one of its trading activity had been put an end to. Hence the amount received cannot be considered as compensation for stopping its business.24. Now we come to the transfer of the selling agency to Bagla-Jaipuria and Co. This is not a right transferred under the agreement dated October 7, 1946. That right had been transferred to Bagla Jaipuria and Co. even at the time the partnership was formed. On October 7, 1946, the assessee was no more the owner of that selling agency. On that day it was an asset of Bagla Jaipuria and Co. Hence the compensation paid can only relate to the termination of the contract of partnership and not to the transfer of the selling agency. Assuming that agreement of October 7, 1946 has indirectly effected the selling agency right of the assessee, the same was one of the several trading activities of the assessee firm. On the basis of the material on record, the High Court held that after the Bagla Group gave up its interest in the Bagla Jaipuria and Co., the assessee firm with the aid of Rs. 35,01,000/- received as compensation acquired controlling shares in two others companies namely the India United Mills Ltd. and the Muir Mills Ltd. From this it is clear that the trading structure of the assessee firm was not affected. It merely replaced one trading activity by another.In Gilanders Arbuthnot and Co. Ltd. v. Commr. of Income-tax, Calcutta, (1964) 53 ITR 283 this Court held that in the case of an assessee having vast array of business including acquisition of agencies in the normal course of business, the determination of an individual agency is a normal incident not affecting or impairing its trading structure. In such cases the amount received for the cancellation of an agency does not represent the price paid for the loss of a capital asset; they were of the nature of income. | 0 | 4,187 | 791 | ### Instruction:
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that one of the rights that the assessee firm parted within under that agreement was the good-will of the company which is also a capital asset. Consequently compensation paid in respect of the same must also be considered as capital receipt.20. In our opinion the aforementioned arguments are fallacious. The managing agency rights vested with the Bagla Jaipuria and Co. Similar is the case so far as the good-will is concerned assuming that any good-will had been built up by that time. Bagla Jaipuria and Co. continues to be in existence.It had not parted with managing agency rights nor its good-will taken away. What has happened is that the partners representing the assessee firm in Bagla Jaiprua and Co. had surrendered their rights in the partnership to the remaining partners and obtained certain payments for surrendering their rights. This is not a case of parting with any agency rights. This is really a case of cancellation of a contract which had been entered into in the ordinary course of business. Such contracts are liable, in the ordinary course of business, to be altered or terminated on terms and any payment received in settlement of the rights as a result of the termination of the contract really represents the profits which the assessee would have made had the contract been performed. As observed by this Court in Jairam Valjis case, 35 ITR 148 = (AIR 1959 SC 291 ) (supra) :"When once it is found that a contract was entered into in the ordinary course of business, any compensation received for its termination would be a revenue receipt, irrespective of whether its performance was to consist of a single act or a series of acts spread over a period and in this respect, it differs from an agency agreement."21. As seen earlier no deed of partnership had been entered into. Therefore the same was terminable at will. Any of the partners of the firm could have brought the partnership to an end. Consequently the possibility of termination of a partnership of the type with which we are concerned is inherent in the very course of business.22. The facts set out in the statement of case show that the assessee firm had various business activities; one of its business activity was to join Bagla Jaipuria and Co. to carry on certain business activities. The assessees representatives by entering into that agreement were merely carrying on a trading activity. Such being the case, it is not possible to hold that the compensation paid for the termination of the contract is a capital receipt.23. It is not the case of the assessee that its only trading activity had come to an end. It had several activities. Just one of its trading activity had been put an end to. Hence the amount received cannot be considered as compensation for stopping its business.24. Now we come to the transfer of the selling agency to Bagla-Jaipuria and Co. This is not a right transferred under the agreement dated October 7, 1946. That right had been transferred to Bagla Jaipuria and Co. even at the time the partnership was formed. On October 7, 1946, the assessee was no more the owner of that selling agency. On that day it was an asset of Bagla Jaipuria and Co. Hence the compensation paid can only relate to the termination of the contract of partnership and not to the transfer of the selling agency. Assuming that agreement of October 7, 1946 has indirectly effected the selling agency right of the assessee, the same was one of the several trading activities of the assessee firm. On the basis of the material on record, the High Court held that after the Bagla Group gave up its interest in the Bagla Jaipuria and Co., the assessee firm with the aid of Rs. 35,01,000/- received as compensation acquired controlling shares in two others companies namely the India United Mills Ltd. and the Muir Mills Ltd. From this it is clear that the trading structure of the assessee firm was not affected. It merely replaced one trading activity by another.In Gilanders Arbuthnot and Co. Ltd. v. Commr. of Income-tax, Calcutta, (1964) 53 ITR 283 this Court held that in the case of an assessee having vast array of business including acquisition of agencies in the normal course of business, the determination of an individual agency is a normal incident not affecting or impairing its trading structure. In such cases the amount received for the cancellation of an agency does not represent the price paid for the loss of a capital asset; they were of the nature of income.25. In Kettlewell Bullen and Co. Ltd. v. Commr. of Income-tax Calcutta, 53 ITR 261 = (AIR 1965 SC 65 ) this Court after considering various decisions rendered by the Courts in U. K. and in this country about the principles which govern the determination of the nature of compensation received on the termination of an agency observed :"On an analysis of these cases which fall on two sides of the dividing line, a satisfactory measure of consistency in principle is disclosed. Where, on a consideration of the circumstances payment is made to compensate a person for cancellation of a contract which does not affect the trading structure of his business, nor deprive him of what is substance is his source of income, termination of the contract being a normal incident of the business and such cancellation leaves him free to carry on his trade (freed from the contract terminated) the receipt is revenue; where by the cancellation of an agency the trading structure of the assessee is impaired or such cancellation results in loss of what may be regarded as the source of the assessees income the payment made to compensate for cancellation of the agency agreement is normally a capital receipt".26. For the reasons mentioned above we hold that the entire sum of Rs. 35,01,000/- received by the assessee was a revenue receipt assessable under Section 10.
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20. In our opinion the aforementioned arguments are fallacious. The managing agency rights vested with the Bagla Jaipuria and Co. Similar is the case so far as the good-will is concerned assuming that any good-will had been built up by that time. Bagla Jaipuria and Co. continues to be in existence.It had not parted with managing agency rights nor its good-will taken away. What has happened is that the partners representing the assessee firm in Bagla Jaiprua and Co. had surrendered their rights in the partnership to the remaining partners and obtained certain payments for surrendering their rights. This is not a case of parting with any agency rights. This is really a case of cancellation of a contract which had been entered into in the ordinary course of business. Such contracts are liable, in the ordinary course of business, to be altered or terminated on terms and any payment received in settlement of the rights as a result of the termination of the contract really represents the profits which the assessee would have made had the contract been performed. As observed by this Court in Jairam Valjis case, 35 ITR 148 = (AIR 1959 SC 291 ) (supra)once it is found that a contract was entered into in the ordinary course of business, any compensation received for its termination would be a revenue receipt, irrespective of whether its performance was to consist of a single act or a series of acts spread over a period and in this respect, it differs from an agency agreement.As seen earlier no deed of partnership had been entered into. Therefore the same was terminable at will. Any of the partners of the firm could have brought the partnership to an end. Consequently the possibility of termination of a partnership of the type with which we are concerned is inherent in the very course of business.22. The facts set out in the statement of case show that the assessee firm had various business activities; one of its business activity was to join Bagla Jaipuria and Co. to carry on certain business activities. The assessees representatives by entering into that agreement were merely carrying on a trading activity. Such being the case, it is not possible to hold that the compensation paid for the termination of the contract is a capital receipt.23. It is not the case of the assessee that its only trading activity had come to an end. It had several activities. Just one of its trading activity had been put an end to. Hence the amount received cannot be considered as compensation for stopping its business.24. Now we come to the transfer of the selling agency to Bagla-Jaipuria and Co. This is not a right transferred under the agreement dated October 7, 1946. That right had been transferred to Bagla Jaipuria and Co. even at the time the partnership was formed. On October 7, 1946, the assessee was no more the owner of that selling agency. On that day it was an asset of Bagla Jaipuria and Co. Hence the compensation paid can only relate to the termination of the contract of partnership and not to the transfer of the selling agency. Assuming that agreement of October 7, 1946 has indirectly effected the selling agency right of the assessee, the same was one of the several trading activities of the assessee firm. On the basis of the material on record, the High Court held that after the Bagla Group gave up its interest in the Bagla Jaipuria and Co., the assessee firm with the aid of Rs. 35,01,000/- received as compensation acquired controlling shares in two others companies namely the India United Mills Ltd. and the Muir Mills Ltd. From this it is clear that the trading structure of the assessee firm was not affected. It merely replaced one trading activity by another.In Gilanders Arbuthnot and Co. Ltd. v. Commr. of Income-tax, Calcutta, (1964) 53 ITR 283 this Court held that in the case of an assessee having vast array of business including acquisition of agencies in the normal course of business, the determination of an individual agency is a normal incident not affecting or impairing its trading structure. In such cases the amount received for the cancellation of an agency does not represent the price paid for the loss of a capital asset; they were of the nature of income.
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IDBI BANK LIMITED THROUGH DGM (LEGAL) Vs. THE OFFICIAL LIQUIDATOR, OFFICE OF THE OFFICIAL LIQUIDATOR OF COMPANIES AND ANR | for this reason, as there were several secured creditors (including SBI) who had still not been satisfied and had consequently approached the DRT. It was observed that before dismissing the winding up petition, all the secured creditors to whom KOFL owed money, should have been called by the Official Liquidator to inquire whether they wanted to step into the shoes of the original petitioner. Taking a broad interpretation of Rule 101, the Division Bench held that the Rule cannot be read as an absolute bar on the continuation of winding up proceedings, where the petitioning creditor fails to advertise the petition. Adverting to the inherent powers vested with the Company Court under Rule 9 and given the absence of a specific provision mandating that the advertisement shall only be published by the petitioning creditor, the Division Bench observed that the Company Court has the discretion to direct the provisional liquidator to publish the advertisement, where the situation so demands. In view of this, C.P. No. 179 of 2001 was revived and the Official Liquidator was directed to continue the winding up proceedings. 11. Upon examining the relevant rules and the decisions rendered by the learned Company Judge and the Division Bench, we are inclined to agree with the view taken by the latter. 11.1 By order dated 05.12.2001, the learned Company Judge had directed the publication of C.P. No. 179 of 2001 in an English and Tamil daily as well as the Government Gazette. However, despite this order, no such advertisement was made. To this extent, we agree with the Division Bench that there has been a violation of the advertisement requirements under Rules 96, 99 and 24, which are mandatory in nature [see National Conduits (P) Ltd. v. S.S. Arora, AIR 1968 SC 279 ; Lt. Col. RK Saxena v. Imperial Forestry Corporation, 2001 CLC 1746]. 11.2 Given this failure to advertise, the option of substitution provided in Rule 101 becomes relevant. In this respect, both the Courts below have found that no other creditor or contributory expressed willingness to prosecute the original winding up petition. At the same time, as noted by the Division Bench, there are other unsatisfied secured creditors of KOFL who were not given the option to step into the shoes of the petitioning creditor in terms of Rule 101. 11.3 Against this backdrop, the crucial question that arises for our consideration is whether a winding up petition can be dismissed solely on the ground of lack of a prosecuting creditor under Rule 101, or whether the Company Court has the power to direct the publication of an advertisement by the Liquidator of the company, especially in cases where other unsatisfied creditors still remain. For answering this question, it is important to bear in mind that winding up proceedings are proceedings in rem and have an impact on the rights of people, in general. Thus, it is mandatory to advertise such proceedings, so as to ensure that they receive the widest possible publicity and all relevant stakeholders have adequate notice. This implies that in a situation where the petitioning creditor fails to advertise the petition and no other creditor or contributory comes forward to prosecute it, Rule 101 should not be read in a manner that absolutely bars the continuation of a winding up petition. This is particularly so when there are unsatisfied creditors who should have been given an opportunity to prosecute the petition, but were deprived of the same due to the failure to advertise. Indeed, Rule 101 is only limited to instances where the petitioning creditor fails to advertise the petition. However, there is nothing in the language of Rules 24, 96, or 99 to indicate that only such petitioning creditor can advertise the petition. In our considered opinion, given the absence of a specific provision mandating that the petition only be advertised by petitioning creditor, the Company Court has the discretion to direct the publishing of an advertisement to secure the interest of other creditors. In such situations, the winding up proceedings cannot be dismissed, as it would frustrate the very objective of securing the interest of all creditors. 11.4 In light of this discussion, we find that it would be unjust to dismiss the winding up petition in the instant case solely on the ground that there is no other person willing to substitute the original creditor in terms of Rule 101. Here, due to the lack of adequate advertisement of the winding up petitions, it appears that the secured creditors of KOFL were constrained to approach the DRT for recovery of their dues by filing O.A. Nos. 139 of 2001, 978 of 2000; and 14 of 2002. Further, upon learning of the decision of the Company Judge dated 04.10.2013 dismissing the winding up petition, one of the secured creditors (SBI) also approached the DRT to secure its interest. Based on this, vide order dated 13.12.2013, the DRT had directed that the amount to be returned to KOFL be attached so that the banks have an opportunity to recover their dues from KOFL. This clearly goes on to show that the secured creditors of KOFL were relevant stakeholders who were affected by the non-advertising of the winding up petition. They should have been called upon to indicate whether they would want to step into the shoes of the petitioning creditors as per Rule 101. 11.5 Clearly, the submission of the learned Senior Counsel for the Petitioner that the winding up petition deserves to be dismissed as all creditors of KOFL have been satisfied is belied by the existence of the proceedings before the DRT. The records show that the settlement of dues has only been with respect to the unsecured creditors of KOFL, which was carried out pursuant to the orders issued by the Company Judge. This is supported by the fact that the advertisement dated 24.08.2005 issued by KOFL inviting claims from recoveries made by its Administrator, was only limited to the depositors or unsecured creditors of the company. | 0[ds]10. As noted supra, a Division Bench of the High Court set aside the order of the Company Court in appeal. While it was observed that the winding up petitions had not been advertised by the petitioning creditor in accordance with the 1959 Rules, it was held that it would be unjust and inequitable to wind up the company only for this reason, as there were several secured creditors (including SBI) who had still not been satisfied and had consequently approached the DRT. It was observed that before dismissing the winding up petition, all the secured creditors to whom KOFL owed money, should have been called by the Official Liquidator to inquire whether they wanted to step into the shoes of the original petitioner. Taking a broad interpretation of Rule 101, the Division Bench held that the Rule cannot be read as an absolute bar on the continuation of winding up proceedings, where the petitioning creditor fails to advertise the petition. Adverting to the inherent powers vested with the Company Court under Rule 9 and given the absence of a specific provision mandating that the advertisement shall only be published by the petitioning creditor, the Division Bench observed that the Company Court has the discretion to direct the provisional liquidator to publish the advertisement, where the situation so demands. In view of this, C.P. No. 179 of 2001 was revived and the Official Liquidator was directed to continue the winding up proceedings11. Upon examining the relevant rules and the decisions rendered by the learned Company Judge and the Division Bench, we are inclined to agree with the view taken by the latterFor answering this question, it is important to bear in mind that winding up proceedings are proceedings in rem and have an impact on the rights of people, in general. Thus, it is mandatory to advertise such proceedings, so as to ensure that they receive the widest possible publicity and all relevant stakeholders have adequate notice. This implies that in a situation where the petitioning creditor fails to advertise the petition and no other creditor or contributory comes forward to prosecute it, Rule 101 should not be read in a manner that absolutely bars the continuation of a winding up petition. This is particularly so when there are unsatisfied creditors who should have been given an opportunity to prosecute the petition, but were deprived of the same due to the failure to advertise. Indeed, Rule 101 is only limited to instances where the petitioning creditor fails to advertise the petition. However, there is nothing in the language of Rules 24, 96, or 99 to indicate that only such petitioning creditor can advertise the petition. In our considered opinion, given the absence of a specific provision mandating that the petition only be advertised by petitioning creditor, the Company Court has the discretion to direct the publishing of an advertisement to secure the interest of other creditors. In such situations, the winding up proceedings cannot be dismissed, as it would frustrate the very objective of securing the interest of all creditors11.4 In light of this discussion, we find that it would be unjust to dismiss the winding up petition in the instant case solely on the ground that there is no other person willing to substitute the original creditor in terms of Rule 101. Here, due to the lack of adequate advertisement of the winding up petitions, it appears that the secured creditors of KOFL were constrained to approach the DRT for recovery of their dues by filing O.A. Nos. 139 of 2001, 978 of 2000; and 14 of 2002. Further, upon learning of the decision of the Company Judge dated 04.10.2013 dismissing the winding up petition, one of the secured creditors (SBI) also approached the DRT to secure its interest. Based on this, vide order dated 13.12.2013, the DRT had directed that the amount to be returned to KOFL be attached so that the banks have an opportunity to recover their dues from KOFL. This clearly goes on to show that the secured creditors of KOFL were relevant stakeholders who were affected by the non-advertising of the winding up petition. They should have been called upon to indicate whether they would want to step into the shoes of the petitioning creditors as per Rule 10111.5 Clearly, the submission of the learned Senior Counsel for the Petitioner that the winding up petition deserves to be dismissed as all creditors of KOFL have been satisfied is belied by the existence of the proceedings before the DRT. The records show that the settlement of dues has only been with respect to the unsecured creditors of KOFL, which was carried out pursuant to the orders issued by the Company Judge. This is supported by the fact that the advertisement dated 24.08.2005 issued by KOFL inviting claims from recoveries made by its Administrator, was only limited to the depositors or unsecured creditors of the company16. As noted supra, the Division Bench affirmed the order of the Company Court in appeal on the basis that it would be unjust to allow the sale transaction, especially since the property in question was the only and prime immovable asset of KOFL and was to meet the demands of several secured and unsecured creditors. In light of this, it was held that the Board resolution dated 31.03.1999 was insufficient and a resolution of the general meeting of KOFL approving the sale transaction was necessary, as required under Section 293(1). The Division Bench further held that the Petitioner only had an agreement to sell in its favour, which did not accord it with any rights by itself. Moreover, since the agreement to sell provided that the possession of the property be delivered to the vendee only at the time of completion of the transaction (which would be the time of registration of the sale deed), it was observed that the transfer of possession on 06.11.2000 reflected the intention of the management of KOFL to met out preferential treatment to the Petitioner. Lastly, it was held that the Petitioner could not claim exclusion from Section 531 on the basis that the agreement to sell had been entered into before the six-month twilight period. This was done because the Division Bench read Section 531 as relating to transfers of property only, and accordingly held the agreement to sell in question is different from a transfer which only occurs through a sale deed in terms of Section 54 of the Transfer of Property Act, 1882. Thus, the Division Bench ruled that the Petitioner could not benefit from Section 531, even though the agreement to sell had been executed almost sixteen months before the winding up petitions were filed17. Upon examining the relevant rules and the decisions rendered by the learned Company Judge and the Division Bench, we agree with the conclusion of the Division Bench that C.A. No. 1208 of 2002 filed by the Petitioner for execution of a sale deed in its favour is liable to be dismissed. This is primarily because the requirements of Section 293(1) of the 1956 Act have not been met17.1 As stated supra, Section 293(1) requires the consent of the general meeting of a company in case of a sale or disposition of the whole or substantial whole of its property. It is also well-settled that the sale of an immovable property can only be effectuated through a sale deed and an agreement to sell does not transfer any right, title or interest in the immovable property [see Suraj Lamp & Industries (P) Ltd. (2) v. State of Haryana, (2012) 1 SCC 656 ; Bank of India v. Abhay D. Narottam, (2005) 11 SCC 520 ]. Given that C.A. No. 1208 of 2002 seeks execution of a sale deed in favour of the Petitioner based on a prior agreement to sell, the approval of the general meeting of the company in terms of Section 293(1) becomes relevant. Contrary to the submission made by the learned Senior Counsel for the Petitioner, this provision is applicable to the present case in view of the categorical finding by both the Courts below that the subject property is the only immovable property of KOFL. Notably, no approval from the general meeting of KOFL has been obtained. There is only a Board resolution dated 31.03.1999 permitting Respondent No. 1 to execute agreements of sale and other documents for the purpose of selling the subject property. In the absence of the requisite approval from the general meeting, the instant application for execution of a sale deed cannot be allowed as doing so would be allowing the Petitioner to sidestep the mandatory requirements of Section 293(1). Therefore, in our considered opinion, C.A. No. 1208 of 2002 deserves to be dismissed on this ground alone17.2 Be that as it may, in light of the contentions raised by both the parties on whether the agreement to sell in question amounts to a fraudulent preference, we consider it necessary to address the same. We differ with the Division Bench inasmuch as the said agreement cannot be termed as a fraudulent preference under Section 531. Under Indian company law, Section 531 of the 1956 Act (now Section 328 of the Companies Act, 2013) is the cornerstone provision that lays down the requirements for a transaction to amount to a fraudulent preference. Framed along the lines of Section 320 of the English Companies Act of 1948, it provides that any act relating to the property of a company may qualify as a fraudulent preference if two conditions are met. First, the dominant motive in the mind of the company (as represented by its directors or general body of shareholders) should be to prefer a particular creditor [see Jayanthi Bai v. Popular Bank Ltd., AIR 1966 Ker 296 ; Official Liquidator, Victor Chit Fund (P.) Ltd. v. Kanhiya Lal & Ors., (1972) 42 ComCas 196 (Del)]. Second, the said act must be undertaken during the period of six months preceding the filing of the winding up petition of the company. While the first requirement ensures that the dominant intention to defraud creditors is detected, the second ensures that there is a level of commercial certainty and finality of transactions for those interacting with the company17.3 In light of this, when we look to the facts of the instant case, it appears that the Division Bench has entirely ignored the second requirement under Section 531. Solely based on an examination of factors indicating a dominant motive of the management of KOFL to benefit the Petitioner, it went on to hold that the agreement to sell constitutes a fraudulent preference. In doing so, it has failed to appreciate that the said agreement was executed on 17.02.2000, while the winding up petitions were filed on 02.07.2001, signifying that there was a gap of over sixteen months between the two events, as opposed to the six-month period contemplated under Section 531. Similarly, it failed to consider that even the transfer of possession of the subject property occurred on 06.11.2000, which was also before the six-month period preceding the filing of the winding up petition. Clearly then, the Division Bench has erred in ignoring the time limit stipulated under Section 531 and holding that the transaction qualifies as a fraudulent preference. As noted supra, the same cannot be disregarded as it is crucial for ensuring commercial certainty for parties transacting with a company17.4 Further, we differ with the reasoning of the Division Bench that the Petitioner cannot avail benefit of Section 531 as the agreement to sell does not amount to a transfer. A bare reading of the provision shows that in addition to any transfer of property, it covers any other act relating to the property. These terms indicate that Section 531 is comprehensive and includes indirect transactions within its scope [see Manik Ratan Guin & Ors. v. Prokash Chandra Chattopadhyay, (1953-54) 58 CWN 545 (Cal)]. Thus, the Petitioner is not precluded from benefiting from Section 531 on account of non- fulfilment of the six-month condition17.5 Therefore, it is evident that the agreement to sell dated 17.02.2000 cannot be termed as a fraudulent preference under Section 53118. At this juncture, we would re-emphasize that our finding on fraudulent preference does not affect our conclusion that C.A. No. 1208 of 2002 is liable to be dismissed, as the non- compliance with Section 293(1) cannot be ignored. However, given our decision in support of revival of the winding up proceedings, we observe that even if the infirmity with respect to Section 293 is subsequently removed by KOFL, any execution of a sale deed in favour of the Petitioner in the future will be subject to the outcome of the winding up proceedings11.1 By order dated 05.12.2001, the learned Company Judge had directed the publication of C.P. No. 179 of 2001 in an English and Tamil daily as well as the Government Gazette. However, despite this order, no such advertisement was made. To this extent, we agree with the Division Bench that there has been a violation of the advertisement requirements under Rules 96, 99 and 24, which are mandatory in nature [see National Conduits (P) Ltd. v. S.S. Arora, AIR 1968 SC 279 ; Lt. Col. RK Saxena v. Imperial Forestry Corporation, 2001 CLC 1746]. | 0 | 4,160 | 2,448 | ### 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:
for this reason, as there were several secured creditors (including SBI) who had still not been satisfied and had consequently approached the DRT. It was observed that before dismissing the winding up petition, all the secured creditors to whom KOFL owed money, should have been called by the Official Liquidator to inquire whether they wanted to step into the shoes of the original petitioner. Taking a broad interpretation of Rule 101, the Division Bench held that the Rule cannot be read as an absolute bar on the continuation of winding up proceedings, where the petitioning creditor fails to advertise the petition. Adverting to the inherent powers vested with the Company Court under Rule 9 and given the absence of a specific provision mandating that the advertisement shall only be published by the petitioning creditor, the Division Bench observed that the Company Court has the discretion to direct the provisional liquidator to publish the advertisement, where the situation so demands. In view of this, C.P. No. 179 of 2001 was revived and the Official Liquidator was directed to continue the winding up proceedings. 11. Upon examining the relevant rules and the decisions rendered by the learned Company Judge and the Division Bench, we are inclined to agree with the view taken by the latter. 11.1 By order dated 05.12.2001, the learned Company Judge had directed the publication of C.P. No. 179 of 2001 in an English and Tamil daily as well as the Government Gazette. However, despite this order, no such advertisement was made. To this extent, we agree with the Division Bench that there has been a violation of the advertisement requirements under Rules 96, 99 and 24, which are mandatory in nature [see National Conduits (P) Ltd. v. S.S. Arora, AIR 1968 SC 279 ; Lt. Col. RK Saxena v. Imperial Forestry Corporation, 2001 CLC 1746]. 11.2 Given this failure to advertise, the option of substitution provided in Rule 101 becomes relevant. In this respect, both the Courts below have found that no other creditor or contributory expressed willingness to prosecute the original winding up petition. At the same time, as noted by the Division Bench, there are other unsatisfied secured creditors of KOFL who were not given the option to step into the shoes of the petitioning creditor in terms of Rule 101. 11.3 Against this backdrop, the crucial question that arises for our consideration is whether a winding up petition can be dismissed solely on the ground of lack of a prosecuting creditor under Rule 101, or whether the Company Court has the power to direct the publication of an advertisement by the Liquidator of the company, especially in cases where other unsatisfied creditors still remain. For answering this question, it is important to bear in mind that winding up proceedings are proceedings in rem and have an impact on the rights of people, in general. Thus, it is mandatory to advertise such proceedings, so as to ensure that they receive the widest possible publicity and all relevant stakeholders have adequate notice. This implies that in a situation where the petitioning creditor fails to advertise the petition and no other creditor or contributory comes forward to prosecute it, Rule 101 should not be read in a manner that absolutely bars the continuation of a winding up petition. This is particularly so when there are unsatisfied creditors who should have been given an opportunity to prosecute the petition, but were deprived of the same due to the failure to advertise. Indeed, Rule 101 is only limited to instances where the petitioning creditor fails to advertise the petition. However, there is nothing in the language of Rules 24, 96, or 99 to indicate that only such petitioning creditor can advertise the petition. In our considered opinion, given the absence of a specific provision mandating that the petition only be advertised by petitioning creditor, the Company Court has the discretion to direct the publishing of an advertisement to secure the interest of other creditors. In such situations, the winding up proceedings cannot be dismissed, as it would frustrate the very objective of securing the interest of all creditors. 11.4 In light of this discussion, we find that it would be unjust to dismiss the winding up petition in the instant case solely on the ground that there is no other person willing to substitute the original creditor in terms of Rule 101. Here, due to the lack of adequate advertisement of the winding up petitions, it appears that the secured creditors of KOFL were constrained to approach the DRT for recovery of their dues by filing O.A. Nos. 139 of 2001, 978 of 2000; and 14 of 2002. Further, upon learning of the decision of the Company Judge dated 04.10.2013 dismissing the winding up petition, one of the secured creditors (SBI) also approached the DRT to secure its interest. Based on this, vide order dated 13.12.2013, the DRT had directed that the amount to be returned to KOFL be attached so that the banks have an opportunity to recover their dues from KOFL. This clearly goes on to show that the secured creditors of KOFL were relevant stakeholders who were affected by the non-advertising of the winding up petition. They should have been called upon to indicate whether they would want to step into the shoes of the petitioning creditors as per Rule 101. 11.5 Clearly, the submission of the learned Senior Counsel for the Petitioner that the winding up petition deserves to be dismissed as all creditors of KOFL have been satisfied is belied by the existence of the proceedings before the DRT. The records show that the settlement of dues has only been with respect to the unsecured creditors of KOFL, which was carried out pursuant to the orders issued by the Company Judge. This is supported by the fact that the advertisement dated 24.08.2005 issued by KOFL inviting claims from recoveries made by its Administrator, was only limited to the depositors or unsecured creditors of the company.
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substantial whole of its property. It is also well-settled that the sale of an immovable property can only be effectuated through a sale deed and an agreement to sell does not transfer any right, title or interest in the immovable property [see Suraj Lamp & Industries (P) Ltd. (2) v. State of Haryana, (2012) 1 SCC 656 ; Bank of India v. Abhay D. Narottam, (2005) 11 SCC 520 ]. Given that C.A. No. 1208 of 2002 seeks execution of a sale deed in favour of the Petitioner based on a prior agreement to sell, the approval of the general meeting of the company in terms of Section 293(1) becomes relevant. Contrary to the submission made by the learned Senior Counsel for the Petitioner, this provision is applicable to the present case in view of the categorical finding by both the Courts below that the subject property is the only immovable property of KOFL. Notably, no approval from the general meeting of KOFL has been obtained. There is only a Board resolution dated 31.03.1999 permitting Respondent No. 1 to execute agreements of sale and other documents for the purpose of selling the subject property. In the absence of the requisite approval from the general meeting, the instant application for execution of a sale deed cannot be allowed as doing so would be allowing the Petitioner to sidestep the mandatory requirements of Section 293(1). Therefore, in our considered opinion, C.A. No. 1208 of 2002 deserves to be dismissed on this ground alone17.2 Be that as it may, in light of the contentions raised by both the parties on whether the agreement to sell in question amounts to a fraudulent preference, we consider it necessary to address the same. We differ with the Division Bench inasmuch as the said agreement cannot be termed as a fraudulent preference under Section 531. Under Indian company law, Section 531 of the 1956 Act (now Section 328 of the Companies Act, 2013) is the cornerstone provision that lays down the requirements for a transaction to amount to a fraudulent preference. Framed along the lines of Section 320 of the English Companies Act of 1948, it provides that any act relating to the property of a company may qualify as a fraudulent preference if two conditions are met. First, the dominant motive in the mind of the company (as represented by its directors or general body of shareholders) should be to prefer a particular creditor [see Jayanthi Bai v. Popular Bank Ltd., AIR 1966 Ker 296 ; Official Liquidator, Victor Chit Fund (P.) Ltd. v. Kanhiya Lal & Ors., (1972) 42 ComCas 196 (Del)]. Second, the said act must be undertaken during the period of six months preceding the filing of the winding up petition of the company. While the first requirement ensures that the dominant intention to defraud creditors is detected, the second ensures that there is a level of commercial certainty and finality of transactions for those interacting with the company17.3 In light of this, when we look to the facts of the instant case, it appears that the Division Bench has entirely ignored the second requirement under Section 531. Solely based on an examination of factors indicating a dominant motive of the management of KOFL to benefit the Petitioner, it went on to hold that the agreement to sell constitutes a fraudulent preference. In doing so, it has failed to appreciate that the said agreement was executed on 17.02.2000, while the winding up petitions were filed on 02.07.2001, signifying that there was a gap of over sixteen months between the two events, as opposed to the six-month period contemplated under Section 531. Similarly, it failed to consider that even the transfer of possession of the subject property occurred on 06.11.2000, which was also before the six-month period preceding the filing of the winding up petition. Clearly then, the Division Bench has erred in ignoring the time limit stipulated under Section 531 and holding that the transaction qualifies as a fraudulent preference. As noted supra, the same cannot be disregarded as it is crucial for ensuring commercial certainty for parties transacting with a company17.4 Further, we differ with the reasoning of the Division Bench that the Petitioner cannot avail benefit of Section 531 as the agreement to sell does not amount to a transfer. A bare reading of the provision shows that in addition to any transfer of property, it covers any other act relating to the property. These terms indicate that Section 531 is comprehensive and includes indirect transactions within its scope [see Manik Ratan Guin & Ors. v. Prokash Chandra Chattopadhyay, (1953-54) 58 CWN 545 (Cal)]. Thus, the Petitioner is not precluded from benefiting from Section 531 on account of non- fulfilment of the six-month condition17.5 Therefore, it is evident that the agreement to sell dated 17.02.2000 cannot be termed as a fraudulent preference under Section 53118. At this juncture, we would re-emphasize that our finding on fraudulent preference does not affect our conclusion that C.A. No. 1208 of 2002 is liable to be dismissed, as the non- compliance with Section 293(1) cannot be ignored. However, given our decision in support of revival of the winding up proceedings, we observe that even if the infirmity with respect to Section 293 is subsequently removed by KOFL, any execution of a sale deed in favour of the Petitioner in the future will be subject to the outcome of the winding up proceedings11.1 By order dated 05.12.2001, the learned Company Judge had directed the publication of C.P. No. 179 of 2001 in an English and Tamil daily as well as the Government Gazette. However, despite this order, no such advertisement was made. To this extent, we agree with the Division Bench that there has been a violation of the advertisement requirements under Rules 96, 99 and 24, which are mandatory in nature [see National Conduits (P) Ltd. v. S.S. Arora, AIR 1968 SC 279 ; Lt. Col. RK Saxena v. Imperial Forestry Corporation, 2001 CLC 1746].
|
Municipal Corporation of Delhi Vs. Subhagwanti & Others | get into a dangerous condition owing to non-repair. It was not and is not necessary in an indictment to aver knowledge or means of knowledge: see Reg. v. Watson, [(1703) 2 Ld. Raym. 856]. In Reg. v. Bradford Navigation Co.[(1865) 6 B. and S. 631, 651] Lord Blackburn (then Blackburn, J.) laid it down as a general principle of law that persons who manage their property so as to be a public nuisance are indictable. In Attorney-General v. Tod Heatley [(1897) 1 Ch. 560] it was clearly laid down that there is an absolute duty to prevent premises becoming a nuisance. "If I were sued for a nuisance, said Lindley, L.J. in Rapier v. London Tramways Co., [(1893) 2 Ch. 588, 599], and the nuisance is proved, it is no defence on my part to say and to prove that I have taken all reasonable care to prevent it. "The ratio of this decision was applied by the Court of Appeal in a subsequent case in Mint v. Good, 1951-1 KB 517, and also in Walsh v. Holst and Co. Ltd., 1958-1 WLR 800. In our opinion, the same principle is applicable in Indian Law. Applying the principle to the present case it is manifest that the appellant is guilty of negligence because of the potential danger of the Clock Tower maintained by it having not been subjected to a careful and systematic inspection which it was the duty of the appellant to carry out.6. The last question is regarding the quantum of damages which requires separate consideration in each case.Section 1 of the Fatal Accidents Act, 1855 (Act XIII of 1855) reads:"Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime.Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any of the person whose death shall have been so caused and shall be brought by and in the name of the executor, administrator or representative of the person deceased; and in every such action the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the Defendant, shall be divided amongst the before mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct.This section is in substance a reproduction of the English Fatal Accidents Acts, 9 and 10 Vict., Ch. 93, known as the Lord Campbells Acts. The scope of the corresponding provisions of the English Fatal Accidents Acts has been discussed by the House of Lords in Davies v. Powell Duffryn Associated Collieries Ltd., 1942 AC 601. At p. 617 of the Report, Lord Wright has stated the legal position as follows:"It is a hard matter of pounds, shillings and pence, subject to the element of reasonable future probabilities. The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend upon the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into lump sum by taking a certain number of years purchase. That sum, however, has to be taxed down by having due regard to uncertainties, for instance, that the widow might have again married and thus ceased to be dependent, and other like matters of speculation and doubt.The same principle has been reiterated by Viscount Simon in Nance v. British Columbia Electric Railway Co. Ltd., 1951- AC 601.In the present case there is evidence that Ram Parkash deceased was 30 years old at the time of the accident, his widow Subhagwanti being aged about 28 and his son 14 and daughters 12 and 2 years old. The evidence adduced regarding the income of Ram Parkash and the amount of loss caused to his widow and children was not satisfactory but the High Court considered that the widow and children must have been receiving at least a monthly sum of Rs. 150 for their subsistence and for the education of the children from the deceased Ram Parkash. The income was capitalised for a period of 15 years and the amount of Rs. 27,000 which was arrived at was more than what the trial Court had awarded. The High Court accordingly saw no reason for reducing the amount of damages awarded by the trial Court. In the case of Tek Chand and his four children, the High Court has estimated that the pecuniary loss caused by the death of his wife should be taken to be Rs. 40 p.m. and if a period of 15 years is taken for the purpose of calculating the total sum, the amount will come to Rs. 7,200. Lastly, in the case of Kuldip Raj, the High Court has calculated the pecuniary loss at the rate of Rs. 50 p.m. and the amount of damages calculated for a period of 15 years would come to Rs. 9,000. In our opinion, the High Court has applied the correct principle in estimation of the damages in all the three appeals and learned Counsel has been unable to show that the judgment of the High Court on this aspect of the case is vitiated for any reason. | 0[ds]It is true that the normal rule is that it is for the plaintiff to prove negligence and not for the defendant to disprove it. But there is an exception to this rule which applies where the circumstances surrounding the thing which causes the damage are at the material time exclusively under the control or management of the defendant or his servant and the happening is such as does not occur in the ordinary course of things without negligence on the defendants part. The principle has been clearly stated in Halsburys Laws of England, 2nd Edn., Vol. 23, at p. 671 asexception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference immediately arising from them is that the injury complained of was caused by the defendants negligence, or where the event charged as negligence tells its own story of negligence on the part of defendant, the story so told being clear and unambiguous. To these cases the maxim res ipsa loquitur applies. Where the doctrine applies, a presumption of fault is raised against the defendant, which, if he is to succeed in his defence, must be overcome by contrary evidence, the burden on the defendant being to show how the act complained of could reasonably happen without negligence on hisour opinion, the doctrine of res ipsa loquitur applies in the circumstances of the present case. It has been found that the Clock Tower was exclusively under the ownership and control of the appellant or its servants. It has also been found by the High Court that the Clock Tower was 80 years old and the normal life of the structure of the top storey of the building, having regard to the kind of mortar used, could be only 40 or 45 years. There is also evidence of the Chief Engineer that the collapse was due to thrust of the arches on the top portion and the mortar was deteriorated to such an extent that it was reduced to powder without any cementing properties. It is also not the case of the appellant that there was any earthquake or storm or any other natural event which was unforeseen and which could have been the cause of the fall of the Clock tower. In these circumstances, the mere fact that there was fall of the Clock Tower tells its own story in raising an inference of negligence so as to establish a prima facie case against theview of the fact that the building had passed its normal age at which the mortar could be expected to deteriorate it was the duty of the appellant to carry out careful and periodical inspection for the purpose of determining whether, in fact, deterioration had taken place and whether any precautions were necessary to strengthen the building. The finding of the High Court is that there is no evidence worth the name to show that any such inspections were carried out on behalf of the appellant and, in fact, if any inspections were carried out, they were of casual and perfunctory nature. The legal position is that there is a special obligation on the owner of adjoining premises for the safety of the structures which he keeps besides the highway. If these structures fall into disrepair so as to be of potential danger to the passers-by or to be a nuisance, the owner is liable to anyone using the highway who is injured by reason of the disrepair. In such a case it is no defence for the owner to prove that he neither knew nor ought to have known of the danger. In other words, the owner is legally responsible irrespective of whether the damage is caused by a patent or a latent defect. In Wringev. Cohen, 1940-1 KB229, the plaintiff was the owner of a lock-up shop in Proctor Place, Sheffield, and the defendant Cohen was the owner of the adjoining house. The defendant had let his premises to a tenant who had occupied them for about two years. It appears that the gable end of the defendants house collapsed owing to a storm, and fell through the roof of the plaintiffs shop. There was evidence that the wall at the gable end of the defendants house had, owing to want of repair, become a nuisance, i.e., a danger to passers-by and adjoining owners. It was held by the Court of Appeals that the defendant was liable for negligence and that if owing to want of repairs premises on a highway become dangerous and, therefore, a nuisance and a passer-by or an adjoining owner suffers damage by the collapse the occupier or the owner if he has undertaken the duty of repair, is answerable whether he knew or ought to have known of the danger orour opinion, the same principle is applicable in Indian Law. Applying the principle to the present case it is manifest that the appellant is guilty of negligence because of the potential danger of the Clock Tower maintained by it having not been subjected to a careful and systematic inspection which it was the duty of the appellant to carrythe present case there is evidence that Ram Parkash deceased was 30 years old at the time of the accident, his widow Subhagwanti being aged about 28 and his son 14 and daughters 12 and 2 years old. The evidence adduced regarding the income of Ram Parkash and the amount of loss caused to his widow and children was not satisfactory but the High Court considered that the widow and children must have been receiving at least a monthly sum of Rs. 150 for their subsistence and for the education of the children from the deceased Ram Parkash. The income was capitalised for a period of 15 years and the amount of Rs. 27,000 which was arrived at was more than what the trial Court had awarded. The High Court accordingly saw no reason for reducing the amount of damages awarded by the trial Court. In the case of Tek Chand and his four children, the High Court has estimated that the pecuniary loss caused by the death of his wife should be taken to be Rs. 40 p.m. and if a period of 15 years is taken for the purpose of calculating the total sum, the amount will come to Rs. 7,200. Lastly, in the case of Kuldip Raj, the High Court has calculated the pecuniary loss at the rate of Rs. 50 p.m. and the amount of damages calculated for a period of 15 years would come to Rs. 9,000. In our opinion, the High Court has applied the correct principle in estimation of the damages in all the three appeals and learned Counsel has been unable to show that the judgment of the High Court on this aspect of the case is vitiated for any reason. | 0 | 3,184 | 1,243 | ### 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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get into a dangerous condition owing to non-repair. It was not and is not necessary in an indictment to aver knowledge or means of knowledge: see Reg. v. Watson, [(1703) 2 Ld. Raym. 856]. In Reg. v. Bradford Navigation Co.[(1865) 6 B. and S. 631, 651] Lord Blackburn (then Blackburn, J.) laid it down as a general principle of law that persons who manage their property so as to be a public nuisance are indictable. In Attorney-General v. Tod Heatley [(1897) 1 Ch. 560] it was clearly laid down that there is an absolute duty to prevent premises becoming a nuisance. "If I were sued for a nuisance, said Lindley, L.J. in Rapier v. London Tramways Co., [(1893) 2 Ch. 588, 599], and the nuisance is proved, it is no defence on my part to say and to prove that I have taken all reasonable care to prevent it. "The ratio of this decision was applied by the Court of Appeal in a subsequent case in Mint v. Good, 1951-1 KB 517, and also in Walsh v. Holst and Co. Ltd., 1958-1 WLR 800. In our opinion, the same principle is applicable in Indian Law. Applying the principle to the present case it is manifest that the appellant is guilty of negligence because of the potential danger of the Clock Tower maintained by it having not been subjected to a careful and systematic inspection which it was the duty of the appellant to carry out.6. The last question is regarding the quantum of damages which requires separate consideration in each case.Section 1 of the Fatal Accidents Act, 1855 (Act XIII of 1855) reads:"Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime.Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any of the person whose death shall have been so caused and shall be brought by and in the name of the executor, administrator or representative of the person deceased; and in every such action the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the Defendant, shall be divided amongst the before mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct.This section is in substance a reproduction of the English Fatal Accidents Acts, 9 and 10 Vict., Ch. 93, known as the Lord Campbells Acts. The scope of the corresponding provisions of the English Fatal Accidents Acts has been discussed by the House of Lords in Davies v. Powell Duffryn Associated Collieries Ltd., 1942 AC 601. At p. 617 of the Report, Lord Wright has stated the legal position as follows:"It is a hard matter of pounds, shillings and pence, subject to the element of reasonable future probabilities. The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend upon the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into lump sum by taking a certain number of years purchase. That sum, however, has to be taxed down by having due regard to uncertainties, for instance, that the widow might have again married and thus ceased to be dependent, and other like matters of speculation and doubt.The same principle has been reiterated by Viscount Simon in Nance v. British Columbia Electric Railway Co. Ltd., 1951- AC 601.In the present case there is evidence that Ram Parkash deceased was 30 years old at the time of the accident, his widow Subhagwanti being aged about 28 and his son 14 and daughters 12 and 2 years old. The evidence adduced regarding the income of Ram Parkash and the amount of loss caused to his widow and children was not satisfactory but the High Court considered that the widow and children must have been receiving at least a monthly sum of Rs. 150 for their subsistence and for the education of the children from the deceased Ram Parkash. The income was capitalised for a period of 15 years and the amount of Rs. 27,000 which was arrived at was more than what the trial Court had awarded. The High Court accordingly saw no reason for reducing the amount of damages awarded by the trial Court. In the case of Tek Chand and his four children, the High Court has estimated that the pecuniary loss caused by the death of his wife should be taken to be Rs. 40 p.m. and if a period of 15 years is taken for the purpose of calculating the total sum, the amount will come to Rs. 7,200. Lastly, in the case of Kuldip Raj, the High Court has calculated the pecuniary loss at the rate of Rs. 50 p.m. and the amount of damages calculated for a period of 15 years would come to Rs. 9,000. In our opinion, the High Court has applied the correct principle in estimation of the damages in all the three appeals and learned Counsel has been unable to show that the judgment of the High Court on this aspect of the case is vitiated for any reason.
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of negligence on the part of defendant, the story so told being clear and unambiguous. To these cases the maxim res ipsa loquitur applies. Where the doctrine applies, a presumption of fault is raised against the defendant, which, if he is to succeed in his defence, must be overcome by contrary evidence, the burden on the defendant being to show how the act complained of could reasonably happen without negligence on hisour opinion, the doctrine of res ipsa loquitur applies in the circumstances of the present case. It has been found that the Clock Tower was exclusively under the ownership and control of the appellant or its servants. It has also been found by the High Court that the Clock Tower was 80 years old and the normal life of the structure of the top storey of the building, having regard to the kind of mortar used, could be only 40 or 45 years. There is also evidence of the Chief Engineer that the collapse was due to thrust of the arches on the top portion and the mortar was deteriorated to such an extent that it was reduced to powder without any cementing properties. It is also not the case of the appellant that there was any earthquake or storm or any other natural event which was unforeseen and which could have been the cause of the fall of the Clock tower. In these circumstances, the mere fact that there was fall of the Clock Tower tells its own story in raising an inference of negligence so as to establish a prima facie case against theview of the fact that the building had passed its normal age at which the mortar could be expected to deteriorate it was the duty of the appellant to carry out careful and periodical inspection for the purpose of determining whether, in fact, deterioration had taken place and whether any precautions were necessary to strengthen the building. The finding of the High Court is that there is no evidence worth the name to show that any such inspections were carried out on behalf of the appellant and, in fact, if any inspections were carried out, they were of casual and perfunctory nature. The legal position is that there is a special obligation on the owner of adjoining premises for the safety of the structures which he keeps besides the highway. If these structures fall into disrepair so as to be of potential danger to the passers-by or to be a nuisance, the owner is liable to anyone using the highway who is injured by reason of the disrepair. In such a case it is no defence for the owner to prove that he neither knew nor ought to have known of the danger. In other words, the owner is legally responsible irrespective of whether the damage is caused by a patent or a latent defect. In Wringev. Cohen, 1940-1 KB229, the plaintiff was the owner of a lock-up shop in Proctor Place, Sheffield, and the defendant Cohen was the owner of the adjoining house. The defendant had let his premises to a tenant who had occupied them for about two years. It appears that the gable end of the defendants house collapsed owing to a storm, and fell through the roof of the plaintiffs shop. There was evidence that the wall at the gable end of the defendants house had, owing to want of repair, become a nuisance, i.e., a danger to passers-by and adjoining owners. It was held by the Court of Appeals that the defendant was liable for negligence and that if owing to want of repairs premises on a highway become dangerous and, therefore, a nuisance and a passer-by or an adjoining owner suffers damage by the collapse the occupier or the owner if he has undertaken the duty of repair, is answerable whether he knew or ought to have known of the danger orour opinion, the same principle is applicable in Indian Law. Applying the principle to the present case it is manifest that the appellant is guilty of negligence because of the potential danger of the Clock Tower maintained by it having not been subjected to a careful and systematic inspection which it was the duty of the appellant to carrythe present case there is evidence that Ram Parkash deceased was 30 years old at the time of the accident, his widow Subhagwanti being aged about 28 and his son 14 and daughters 12 and 2 years old. The evidence adduced regarding the income of Ram Parkash and the amount of loss caused to his widow and children was not satisfactory but the High Court considered that the widow and children must have been receiving at least a monthly sum of Rs. 150 for their subsistence and for the education of the children from the deceased Ram Parkash. The income was capitalised for a period of 15 years and the amount of Rs. 27,000 which was arrived at was more than what the trial Court had awarded. The High Court accordingly saw no reason for reducing the amount of damages awarded by the trial Court. In the case of Tek Chand and his four children, the High Court has estimated that the pecuniary loss caused by the death of his wife should be taken to be Rs. 40 p.m. and if a period of 15 years is taken for the purpose of calculating the total sum, the amount will come to Rs. 7,200. Lastly, in the case of Kuldip Raj, the High Court has calculated the pecuniary loss at the rate of Rs. 50 p.m. and the amount of damages calculated for a period of 15 years would come to Rs. 9,000. In our opinion, the High Court has applied the correct principle in estimation of the damages in all the three appeals and learned Counsel has been unable to show that the judgment of the High Court on this aspect of the case is vitiated for any reason.
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M/s Thermax Ltd. & Others Vs. K.M. Johny & Others | have any personal role in the allegations and claims of Respondent No.1. There is also no specific allegation with regard to their role. 21) Apart from the fact that the complaint lacks necessary ingredients of Sections 405, 406, 420 read with Section 34 IPC, it is to be noted that the concept of `vicarious liability is unknown to criminal law. As observed earlier, there is no specific allegation made against any person but the members of the Board and senior executives are joined as the persons looking after the management and business of the appellant- Company. 22) It is useful to demonstrate certain examples, namely, Section 141 of the Negotiable Instruments Act, 1881 which specifically provides that if the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Likewise, Section 32 of the Industrial Disputes Act, 1947 provides that where a person committing an offence under this Act is a company, or other body corporate, or an association of persons, every director, manager, secretary, agent or other officer or person concerned with the management thereof shall, unless he proves that the offence was committed without his knowledge or consent, be deemed to be guilty of such offence. We have already noted that the offence alleged in the criminal complaint filed by respondent No.1 is under Sections 405 and 420 IPC whereunder no specific liability is imposed on the officers of the company, if the alleged offence is by the Company. In the absence of specific details about the same, no person other than appellant No.1-Company can be prosecuted under the alleged complaint. 23) The Courts below failed to appreciate an important aspect that the complaint came to be filed in the year 2002 when the alleged disputes pertain to the period from 1993- 1995. As rightly pointed out, the Courts below ought to have appreciated that respondent No.1 was trying to circumvent the jurisdiction of the Civil Courts which estopped him from proceeding on account of the law of limitation. 24) We have already pointed out that respondent No.1 had previously filed three complaints which were concluded after exhaustive enquiry with the respective police authorities. The first complaint was on 06.05.2000 being Javak No. 974/2000 with the Crime Branch-II, Pune which registered the same in its Criminal Register No. 11/2000. Pursuant thereto, the appellants were summoned and exhaustive enquiry was conducted by the Crime Branch-II and after recording the statements and perusal of documents and after undertaking an extensive interrogation, the Crime Branch-II closed the case. The said closure of the case was informed to respondent No.1 by the police authorities by their letter dated 28.07.2000. 25) The materials placed further show that notwithstanding the complaint dated 06.05.2000 which was closed by the Crime Branch-II, another complaint on the same facts, was filed by respondent No.1 at the Bhosari Police Station being Javak No. 3142/2001. It is pointed out that the appellant and its officers attended the Bhosari Police Station, thereafter the said complaint was also closed after the facts were placed before the officers of the Bhosari Police Station. 26) Apart from these complaints, respondent No.1 once again filed a third complaint at the Commissioners Office, Crime Branch, Pune being Javak No. 100/2001. The officers of appellant-Company appeared before the Crime Branch, who after perusing the documents and the written statements of appellant No.1, informed the appellants that the matter was closed. 27) It is the grievance of the appellants that without disclosing these material facts and suppressing the fact that the complainant had previously filed three different complaints to various police authorities and that the said complaints were closed on being classified as civil disputes, the complainant had filed the aforesaid criminal complaint before the Magistrate being RCC No. 12 of 2002. 28) Mr. K.T.S. Tulsi, learned senior counsel for respondent No.1 has pointed out that at this stage, namely, issuance of direction to the police for submission of report under Section 156(3) of the Code, the accused has no role and need not be heard. The said contention is undoubtedly in consonance with the procedure prescribed. However, in view of specific direction of the Division Bench of the High Court by a common order dated 10.06.2003, disposing off the cases by remitting the matter back to the Magistrate for reconsideration of the entire prayer as made by the complainant and to pass fresh orders, after giving adequate opportunity of hearing to both the sides, and decide afresh the application seeking direction under Section 156(3) by giving cogent reasons for coming to such conclusion, the procedure adopted by the Magistrate cannot be faulted with. Though the appellant Company/accused has no right to be heard at this stage in view of the direction of the High Court, no exception be taken to the order of the Magistrate hearing the Complainant and the appellant Company/accused even at the stage of calling for a report under Section 156(3) of the Code. 29) The entire analysis of the complaints with reference to the principles enunciated above and the ingredients of Sections 405, 406, 420 read with Section 34 IPC clearly show that there was inordinate delay and laches, the complaint itself is inherently improbable contains the flavour of civil nature and taking note of the closure of earlier three complaints that too after thorough investigation by the police, we are of the view that the Magistrate committed a grave error in calling for a report under Section 156(3) of the Code from the Crime Branch, Pune. In view of those infirmities and in the light of Section 482 of the Code, the High Court ought to have quashed those proceedings to safeguard the rights of the appellants. | 1[ds]7) In order to understand the rival contentions, it is useful to refer the complaint of the Respondent No. 1 dated 30.05.2002 which was made before the Judicial Magistrate, First Class, Pimpri in Regular Criminal Case No. 12 of 2002. Respondent No. 1 herein is the complainant and all the appellants herein have been shown as accused. The said criminal complaint was made for the offences under Sections 420, 406 read with 34 IPC. The complaint proceeds that complainant is the Proprietor of M/s Rini Engineers and M/s Sherly Engineers which are small-scale industries doing fabrication job work for various industries, namely, TELCO, Ion Exchange Ltd., etc. The following averments in the complaint are relevant for our consideration:a) The complainant has been doing the said business in Maharashtra since last more than 27 years. The accused No. 1 is a company and accused No. 2 is the Chairperson of the Accused No. 1. Accused No. 3 was the Managing Director and the Accused Nos. 4 to 15 was doing service as Manager of Accused No. 1 at the relevant time. The Accused No. 1 has its office at the above address. The Accused Nos. 2 to 15 were looking after the management and business of Accused No. 1b) The complainant was doing fabrication job work for the Accused for several years. The accused placed purchase order No. 260062 dated 24.04.1995 of Rs. 3,20,000/- for designing and manufacturing two numbers stationary LPG Storage Tanks. The complainant has been granted the necessary licenses by the Explosives Department for manufacturing LPG Storage Tanks and LPG Storage Tankers. The said job is a specialized job and requires Best quality material as it involves high risks. At the relevant time, the required material was not available in the market. Therefore, the complainant requested the Accused for the supply of material for the said order and to debit the material cost from the final bill. The accused initially agreed for the same. However, subsequently insisted for payment before delivery of material. Therefore, complainant paid Rs. 1,14,098/- by pay order dated 31.07.1995 drawn on the Sadguru Jangli Maharaj Bank, Chinchwad. The Company issued material after receipt of pay order, vide excise gate Pass No. 1328 and 175713 dated 04.08.1995. The complainant received the material and was surprised to see that the accused had supplied scrap material for the manufacturing of LPG Storage Tanks and same was useless for the job. The complainant immediately contacted the accused and informed about the same. The complainant requested the accused to take the scrap material back and issue genuine material. However, accused refused to do so, the complaint has spent the amount of Rs. 60,000/- for drawing and approval etc. and Rs. 1,14,098/- by pay order for the material to the accused. Thus, the accused have cheated the complainant and there by caused wrongful loss to the complainantc) The accused placed Purchase Order No. 240307 dated 22.03.1993 for Rs. 8,00,000/- for the fabrication and erection of Tower Support Structural etc. for the Mehasana (Gujarat) Project. The accused also represented that they will hire the machinery of the complainant for the said job at the rate of Rs. 2,400/- per day. Believing the same, the complainant purchased brand new machinery of Rs. 5,80,000/- specially for the said project and dispatched the same to Mehasana site. The complainant has completed the said job according to schedule and to the satisfaction of the accused. The complainant also carried out additional work at the site as per the request of the accused. The balance outstanding for the said work is Rs. 2,47,570/- and is still receivable from the accused. The amount towards the hiring charges for the machinery is Rs. 58,32,000/- is yet to be paid by the accused. The accused have not returned the machinery of the complainant till the date and have been using the same for their other jobs also. Thus the accused owe the complainant Rs. 68,79,750/- and the same is not paid till the dated) The complainant states that he has carried out several fabrication job for the accused and huge amount of Rs. 91,95,054 is outstanding from the accused till the date. In spite of several requests of the complainant, since the accused are very influential, no body has taken cognizance of the complaints of the complainant. The complainant has also filed complaint dated 15.09.1998 with Pimpri Police Station against the accused but all in vaine) Thereafter the complainant filed complaint dated 06.05.2000 with Crime Branch, Pune against the accused, however, till the date police have not taken any cognizance of the same in spite of the positive opinion of the police prosecutor attached to the Officer Commissioner of Police, Pune. The accused are very influential and the complainant has no other option but to file the present complaint in Honble Courtf) The complainant is filing herewith all the relevant documents in support of this complaint and submits that the present case warrants detailed investigation under Section 156(3) of Cr.P.C. There is a separate cell of economic offences at Crime Branch, Pune and it is necessary to send the present complaint to Crime Branch, Pune for investigation under Section 156(3) of Cr.P.C The complainant therefore prays that:i) The complaint be sent to Crime Branch, Pune for investigation u/s 156(3) of Cr.P.C. and;ii) After receipt of the report of investigation, the accused be dealt with severally according to law and punished as per provision of law.16) The principles enunciated from the above-quoted decisions clearly show that for proceedings under Section 156(3) of the Code, the complaint must disclose relevant material ingredients of Sections 405, 406, 420 read with Section 34 IPC. If there is a flavour of civil nature, the same cannot be agitated in the form of criminal proceeding. If there is huge delay and in order to avoid the period of limitation, it cannot be resorted to a criminal proceeding.It is seen from the materials placed that three complaints containing similar allegations have been investigated previously and all were closed as the alleged claim was found to be of civil nature. In those circumstances, it did not lie for Respondent No.1-the complainant to approach the Magistrate with the same subject Complaint. Inasmuch as the dispute arose out of a contract and a constituted remedy is only before a Civil Court, the Magistrate ought to have appreciated that Respondent No.1 was attempting to use the machinery of the criminal courts for private gains and for exerting unjust, undue and unwarranted pressure on the appellants in order to fulfill his illegal demands and extract undeserving monetary gains from them18) The Courts below failed to appreciate that Ex. 61 is a reply filed by the Crime Branch-II and Ex. 63 is the statement of Shri V.B. Kadam, which categorically stated that the complaint preferred by Respondent No.1 registered at Crime Register No. 11/2000 was filed as being civil in nature. Even if we accept that the records were destroyed and notwithstanding such destruction, it was a matter of record that the complaint preferred by Respondent No.1 was indeed investigated and categorized as civil in nature. This aspect has not been considered either by the Magistrate or by the High Court19) It is settled law that the essential ingredients for an offence under Section 420, which we have already extracted, is that there has to be dishonest intention to deceive another person. We have already quoted the relevant allegations in the complaint and perusal of the same clearly shows that no such dishonest intention can be seen or even inferred inasmuch as the entire dispute pertains to contractual obligations between the parties. Since the very ingredients of Section 420 are not attracted, the prosecution initiated is wholly untenable. Even if we admit that allegations in the complaint do make out a dispute, still it ought to be considered that the same is merely a breach of contract and the same cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right from the beginning of the transaction. Inasmuch as there are number of documents to show that appellant-Company had acted in terms of the agreement and in a bona fide manner, it cannot be said that the act of the appellant-Company amounts to a breach of contract20) Though Respondent No.1 has roped all the appellants in a criminal case without their specific role or participation in the alleged offence with the sole purpose of settling his dispute with appellant-Company by initiating the criminal prosecution, it is pointed out that appellant Nos. 2 to 8 are the Ex-Chairperson, Ex-Directors and Senior Managerial Personnel of appellant No.1-Company, who do not have any personal role in the allegations and claims of Respondent No.1. There is also no specific allegation with regard to their role21) Apart from the fact that the complaint lacks necessary ingredients of Sections 405, 406, 420 read with Section 34 IPC, it is to be noted that the concept of `vicarious liability is unknown to criminal law. As observed earlier, there is no specific allegation made against any person but the members of the Board and senior executives are joined as the persons looking after the management and business of the appellant- Company.We have already noted that the offence alleged in the criminal complaint filed by respondent No.1 is under Sections 405 and 420 IPC whereunder no specific liability is imposed on the officers of the company, if the alleged offence is by the Company. In the absence of specific details about the same, no person other than appellant No.1-Company can be prosecuted under the alleged complaint23) The Courts below failed to appreciate an important aspect that the complaint came to be filed in the year 2002 when the alleged disputes pertain to the period from 1993- 1995. As rightly pointed out, the Courts below ought to have appreciated that respondent No.1 was trying to circumvent the jurisdiction of the Civil Courts which estopped him from proceeding on account of the law of limitation24) We have already pointed out that respondent No.1 had previously filed three complaints which were concluded after exhaustive enquiry with the respective police authorities. The first complaint was on 06.05.2000 being Javak No. 974/2000 with the Crime Branch-II, Pune which registered the same in its Criminal Register No. 11/2000. Pursuant thereto, the appellants were summoned and exhaustive enquiry was conducted by the Crime Branch-II and after recording the statements and perusal of documents and after undertaking an extensive interrogation, the Crime Branch-II closed the case. The said closure of the case was informed to respondent No.1 by the police authorities by their letter dated 28.07.200025) The materials placed further show that notwithstanding the complaint dated 06.05.2000 which was closed by the Crime Branch-II, another complaint on the same facts, was filed by respondent No.1 at the Bhosari Police Station being Javak No. 3142/2001. It is pointed out that the appellant and its officers attended the Bhosari Police Station, thereafter the said complaint was also closed after the facts were placed before the officers of the Bhosari Police Station26) Apart from these complaints, respondent No.1 once again filed a third complaint at the Commissioners Office, Crime Branch, Pune being Javak No. 100/2001. The officers of appellant-Company appeared before the Crime Branch, who after perusing the documents and the written statements of appellant No.1, informed the appellants that the matter was closed.The said contention is undoubtedly in consonance with the procedure prescribed. However, in view of specific direction of the Division Bench of the High Court by a common order dated 10.06.2003, disposing off the cases by remitting the matter back to the Magistrate for reconsideration of the entire prayer as made by the complainant and to pass fresh orders, after giving adequate opportunity of hearing to both the sides, and decide afresh the application seeking direction under Section 156(3) by giving cogent reasons for coming to such conclusion, the procedure adopted by the Magistrate cannot be faulted with. Though the appellant Company/accused has no right to be heard at this stage in view of the direction of the High Court, no exception be taken to the order of the Magistrate hearing the Complainant and the appellant Company/accused even at the stage of calling for a report under Section 156(3) of the Code29) The entire analysis of the complaints with reference to the principles enunciated above and the ingredients of Sections 405, 406, 420 read with Section 34 IPC clearly show that there was inordinate delay and laches, the complaint itself is inherently improbable contains the flavour of civil nature and taking note of the closure of earlier three complaints that too after thorough investigation by the police, we are of the view that the Magistrate committed a grave error in calling for a report under Section 156(3) of the Code from the Crime Branch, Pune. In view of those infirmities and in the light of Section 482 of the Code, the High Court ought to have quashed those proceedings to safeguard the rights of the appellants. | 1 | 8,842 | 2,401 | ### 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:
have any personal role in the allegations and claims of Respondent No.1. There is also no specific allegation with regard to their role. 21) Apart from the fact that the complaint lacks necessary ingredients of Sections 405, 406, 420 read with Section 34 IPC, it is to be noted that the concept of `vicarious liability is unknown to criminal law. As observed earlier, there is no specific allegation made against any person but the members of the Board and senior executives are joined as the persons looking after the management and business of the appellant- Company. 22) It is useful to demonstrate certain examples, namely, Section 141 of the Negotiable Instruments Act, 1881 which specifically provides that if the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Likewise, Section 32 of the Industrial Disputes Act, 1947 provides that where a person committing an offence under this Act is a company, or other body corporate, or an association of persons, every director, manager, secretary, agent or other officer or person concerned with the management thereof shall, unless he proves that the offence was committed without his knowledge or consent, be deemed to be guilty of such offence. We have already noted that the offence alleged in the criminal complaint filed by respondent No.1 is under Sections 405 and 420 IPC whereunder no specific liability is imposed on the officers of the company, if the alleged offence is by the Company. In the absence of specific details about the same, no person other than appellant No.1-Company can be prosecuted under the alleged complaint. 23) The Courts below failed to appreciate an important aspect that the complaint came to be filed in the year 2002 when the alleged disputes pertain to the period from 1993- 1995. As rightly pointed out, the Courts below ought to have appreciated that respondent No.1 was trying to circumvent the jurisdiction of the Civil Courts which estopped him from proceeding on account of the law of limitation. 24) We have already pointed out that respondent No.1 had previously filed three complaints which were concluded after exhaustive enquiry with the respective police authorities. The first complaint was on 06.05.2000 being Javak No. 974/2000 with the Crime Branch-II, Pune which registered the same in its Criminal Register No. 11/2000. Pursuant thereto, the appellants were summoned and exhaustive enquiry was conducted by the Crime Branch-II and after recording the statements and perusal of documents and after undertaking an extensive interrogation, the Crime Branch-II closed the case. The said closure of the case was informed to respondent No.1 by the police authorities by their letter dated 28.07.2000. 25) The materials placed further show that notwithstanding the complaint dated 06.05.2000 which was closed by the Crime Branch-II, another complaint on the same facts, was filed by respondent No.1 at the Bhosari Police Station being Javak No. 3142/2001. It is pointed out that the appellant and its officers attended the Bhosari Police Station, thereafter the said complaint was also closed after the facts were placed before the officers of the Bhosari Police Station. 26) Apart from these complaints, respondent No.1 once again filed a third complaint at the Commissioners Office, Crime Branch, Pune being Javak No. 100/2001. The officers of appellant-Company appeared before the Crime Branch, who after perusing the documents and the written statements of appellant No.1, informed the appellants that the matter was closed. 27) It is the grievance of the appellants that without disclosing these material facts and suppressing the fact that the complainant had previously filed three different complaints to various police authorities and that the said complaints were closed on being classified as civil disputes, the complainant had filed the aforesaid criminal complaint before the Magistrate being RCC No. 12 of 2002. 28) Mr. K.T.S. Tulsi, learned senior counsel for respondent No.1 has pointed out that at this stage, namely, issuance of direction to the police for submission of report under Section 156(3) of the Code, the accused has no role and need not be heard. The said contention is undoubtedly in consonance with the procedure prescribed. However, in view of specific direction of the Division Bench of the High Court by a common order dated 10.06.2003, disposing off the cases by remitting the matter back to the Magistrate for reconsideration of the entire prayer as made by the complainant and to pass fresh orders, after giving adequate opportunity of hearing to both the sides, and decide afresh the application seeking direction under Section 156(3) by giving cogent reasons for coming to such conclusion, the procedure adopted by the Magistrate cannot be faulted with. Though the appellant Company/accused has no right to be heard at this stage in view of the direction of the High Court, no exception be taken to the order of the Magistrate hearing the Complainant and the appellant Company/accused even at the stage of calling for a report under Section 156(3) of the Code. 29) The entire analysis of the complaints with reference to the principles enunciated above and the ingredients of Sections 405, 406, 420 read with Section 34 IPC clearly show that there was inordinate delay and laches, the complaint itself is inherently improbable contains the flavour of civil nature and taking note of the closure of earlier three complaints that too after thorough investigation by the police, we are of the view that the Magistrate committed a grave error in calling for a report under Section 156(3) of the Code from the Crime Branch, Pune. In view of those infirmities and in the light of Section 482 of the Code, the High Court ought to have quashed those proceedings to safeguard the rights of the appellants.
### Response:
1
### Explanation:
by Respondent No.1 was indeed investigated and categorized as civil in nature. This aspect has not been considered either by the Magistrate or by the High Court19) It is settled law that the essential ingredients for an offence under Section 420, which we have already extracted, is that there has to be dishonest intention to deceive another person. We have already quoted the relevant allegations in the complaint and perusal of the same clearly shows that no such dishonest intention can be seen or even inferred inasmuch as the entire dispute pertains to contractual obligations between the parties. Since the very ingredients of Section 420 are not attracted, the prosecution initiated is wholly untenable. Even if we admit that allegations in the complaint do make out a dispute, still it ought to be considered that the same is merely a breach of contract and the same cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right from the beginning of the transaction. Inasmuch as there are number of documents to show that appellant-Company had acted in terms of the agreement and in a bona fide manner, it cannot be said that the act of the appellant-Company amounts to a breach of contract20) Though Respondent No.1 has roped all the appellants in a criminal case without their specific role or participation in the alleged offence with the sole purpose of settling his dispute with appellant-Company by initiating the criminal prosecution, it is pointed out that appellant Nos. 2 to 8 are the Ex-Chairperson, Ex-Directors and Senior Managerial Personnel of appellant No.1-Company, who do not have any personal role in the allegations and claims of Respondent No.1. There is also no specific allegation with regard to their role21) Apart from the fact that the complaint lacks necessary ingredients of Sections 405, 406, 420 read with Section 34 IPC, it is to be noted that the concept of `vicarious liability is unknown to criminal law. As observed earlier, there is no specific allegation made against any person but the members of the Board and senior executives are joined as the persons looking after the management and business of the appellant- Company.We have already noted that the offence alleged in the criminal complaint filed by respondent No.1 is under Sections 405 and 420 IPC whereunder no specific liability is imposed on the officers of the company, if the alleged offence is by the Company. In the absence of specific details about the same, no person other than appellant No.1-Company can be prosecuted under the alleged complaint23) The Courts below failed to appreciate an important aspect that the complaint came to be filed in the year 2002 when the alleged disputes pertain to the period from 1993- 1995. As rightly pointed out, the Courts below ought to have appreciated that respondent No.1 was trying to circumvent the jurisdiction of the Civil Courts which estopped him from proceeding on account of the law of limitation24) We have already pointed out that respondent No.1 had previously filed three complaints which were concluded after exhaustive enquiry with the respective police authorities. The first complaint was on 06.05.2000 being Javak No. 974/2000 with the Crime Branch-II, Pune which registered the same in its Criminal Register No. 11/2000. Pursuant thereto, the appellants were summoned and exhaustive enquiry was conducted by the Crime Branch-II and after recording the statements and perusal of documents and after undertaking an extensive interrogation, the Crime Branch-II closed the case. The said closure of the case was informed to respondent No.1 by the police authorities by their letter dated 28.07.200025) The materials placed further show that notwithstanding the complaint dated 06.05.2000 which was closed by the Crime Branch-II, another complaint on the same facts, was filed by respondent No.1 at the Bhosari Police Station being Javak No. 3142/2001. It is pointed out that the appellant and its officers attended the Bhosari Police Station, thereafter the said complaint was also closed after the facts were placed before the officers of the Bhosari Police Station26) Apart from these complaints, respondent No.1 once again filed a third complaint at the Commissioners Office, Crime Branch, Pune being Javak No. 100/2001. The officers of appellant-Company appeared before the Crime Branch, who after perusing the documents and the written statements of appellant No.1, informed the appellants that the matter was closed.The said contention is undoubtedly in consonance with the procedure prescribed. However, in view of specific direction of the Division Bench of the High Court by a common order dated 10.06.2003, disposing off the cases by remitting the matter back to the Magistrate for reconsideration of the entire prayer as made by the complainant and to pass fresh orders, after giving adequate opportunity of hearing to both the sides, and decide afresh the application seeking direction under Section 156(3) by giving cogent reasons for coming to such conclusion, the procedure adopted by the Magistrate cannot be faulted with. Though the appellant Company/accused has no right to be heard at this stage in view of the direction of the High Court, no exception be taken to the order of the Magistrate hearing the Complainant and the appellant Company/accused even at the stage of calling for a report under Section 156(3) of the Code29) The entire analysis of the complaints with reference to the principles enunciated above and the ingredients of Sections 405, 406, 420 read with Section 34 IPC clearly show that there was inordinate delay and laches, the complaint itself is inherently improbable contains the flavour of civil nature and taking note of the closure of earlier three complaints that too after thorough investigation by the police, we are of the view that the Magistrate committed a grave error in calling for a report under Section 156(3) of the Code from the Crime Branch, Pune. In view of those infirmities and in the light of Section 482 of the Code, the High Court ought to have quashed those proceedings to safeguard the rights of the appellants.
|
Karnataka State Financial Corporation Vs. N. Narasimahaiah & Others | Mills and Another [(1994) 2 SCC 647] , this Court held: "19. The right vested in the Corporation under Section 29 of the Act is besides the right already possessed at common law to institute a suit or the right available to it under Section 31 of the Act." Section 32G of the Act provides for an additional remedy. It is, however, interesting to note that while upholding the right of the Corporation to opt for either Section 29 or Section 31 of the Act, it was opined: "In our opinion the Corporation can initially take recourse to Section 31 of the Act but withdraw or abandon it at any stage and take recourse to the provisions of Section 29 of the Act, which section deals with not only the rights but also provides a self-contained remedy to the Corporation for recovery of its dues. If the Corporation chooses to take recourse to the remedy available under Section 31 of the Act and pursues the same to the logical conclusion and obtains an order or decree, it may thereafter execute the order or decree, in the manner provided by Section 32(7) and (8) of the Act. The Corporation, however, may withdraw or abandon the proceedings at that stage and take recourse to the provisions of Section 29 of the Act." 30. Right of property, although no longer a fundamental right, is still a constitutional right. It is also human right. In absence of any provision either expressly or by necessary implication, depriving a person there from, the court shall not construe a provision leaning in favour of such deprivation. Recently, this Court in P.T. Munichikkanna Reddy & Ors. v. Revamma & Ors. [(2007) 6 SCC 59] dealing with adverse possession opined: "Human rights have been historically considered in the realm of individual rights such as, right to health, right to livelihood, right to shelter and employment etc. but now human rights are gaining a multifaceted dimension. Right to property is also considered very much a part of the new dimension. Therefore, even claim of adverse possession has to be read in that context. The activist approach of the English Courts is quite visible from the judgment of Beaulane Properties Ltd. v. Palmer [2005 (3) WLR 554 : 2005 EWHC 817 (Ch.)] and JA Pye (Oxford) Ltd v. United Kingdom [2005] ECHR 921 [2005] 49 ERG 90, [2005] ECHR 921], The court herein tried to read the Human Rights position in the context of adverse possession. But what is commendable is that the dimension of human rights has widened so much that now property dispute issues are also being raised within the contours of human rights." 31. A surety may be a Director of the Company. He also may not be. Even if he is a close relative of the Director or the Managing Director of the Company, the same is not relevant. A Director of the Company is not an industrial concern. He in his capacity as a surety would certainly not be. A juristic person is a separate legal entity. Its veil can be lifted or pierced only in certain situations. [See Salomon v. Salomon and Co. [1897 AC 22], Dal Chand and Others v. Commissioner of Income Tax, Punjab (1944) 12 ITR 458, Juggilal Kamlapat vs. Commissioner of Income Tax, U.P. (1969) 1 SCR 988 = 1969 (73) ITR 702 and Kapila Hingorani v. State of Bihar (2003) 6 SCC 1 ] 32. Interpretation of a statute would not depend upon a contingency. It has to be interpreted on its own. It is a trite law that the court would ordinarily take recourse to the golden rule of literal interpretation. It is not a case where we are dealing with a defect in the legislative drafting. We cannot presume any. In a case where a court has to weigh between a right of recovery and protection of a right, it would also lean in favour of the person who is going to be deprived therefrom. It would not be the other way round. Only because a speedy remedy is provided for that would itself lead to the conclusion that the provisions of the Act have to be extended although the statute does not say so. The object of the Act would be a relevant factor for interpretation only when the language is not clear and when two meanings are possible and not in a case where the plain language leads to only one conclusion.33. Even if the legislation is beneficent, the same by itself would not be held to be extendable to a situation which the statute does not contemplate. [S. Sundaram Pillai, etc. v. V.R. Pattabiraman AIR 1985 SC 582 ]. In Attorney General v. Milne [1914-15] All E.R. Rep. 1061], Lord Dunedin states: "Now, prima facie one would expect that the scope of the two sets of provisions would be the same, i.e., in other words that the question must be answered as to those kinds of property which are swept in by s.2, just as much as to those which fall under s.1. Inasmuch, however, as this is a taxing statute, and the duty here is an additional duty, I consider that it must be shown that the words would clearly cover the individual case to which it is right to apply them." 34. It is now well-settled that when more than one remedy is provided for an option is given to a suiter to opt for one or the other remedy. Such a provision is not ultra vires as has been held by this Court in Maganlal Chhaganlal (P) Ltd. v. Municipal Corporation of Greater Bombay and Others [(1974) 2 SCC 402] , Director of Industries, U.P. and Others v. Deep Chand Agarwal [(1980) 2 SCC 332] Rajiv Anand (supra). CONCLUSION 35. For the views we have taken, it is not necessary for us to consider the question as to whether before a property is put to sale, possession is required to be taken. | 0[ds]10. Apart from the said constitutional restrictions, the statute does not put any embargo upon the corporation to exercise its power under Section 29 of the Act. Indisputably, the said provision was enacted by the Parliament with a view to see that the dues of the Corporation are realized expeditiously. When a statutory power is conferred, it is a trite law that the same must be exercised within the four corners of the Statute. Power of a lender to realize the amount lent either by enforcing the charged and / or hypothecated or encumbrance created on certain property and/ or proceeding simultaneously and/ or independently against the surety/ guarantor is a statutory right. Different statutes provide for different remedies. We may by way of example refer to Pawan Kumar Jain v. Pradeshiya Industrial and Investment Corporation of U.P. Ltd. and Others [(2004) 6 SCC 758] where a statutory mandate has been given to realize the dues from sale of the mortgaged properties and then to sell other properties of the borrower. We are, however, not concerned with such a situation.11. Such a right can also indisputably be conferred by way of contract as has been provided for under Section 69 of the Transfer of Property Act in terms whereof a mortgagee is entitled to effect sale without the intervention of the court, subject, of course, to the limitations prescribed therein.12. If special provisions are made in derogation to the general right of a citizen, the statute, in our opinion, should receive strict construction. Industrial concern has been defined under the Act. For the purpose of enforcing a liability of an industrial concern, recourse can be taken both under Sections 29 and 31 of the Act. Right of the corporation to file a suit or take recourse to the provisions contained in Section 32G of the Act also exists.Section 29 of the Act nowhere states that the corporation can proceed against the surety even if some properties are mortgaged or hypothecated by it. The right of the financial corporation in terms of Section 29 of the Act must be exercised only on a defaulting party. There cannot be any default as is envisaged in Section 29 by a surety or a guarantor. The liabilities of a surety or the guarantor to repay the loan of the principal debtor arises only when a default is made by the latter.15. The words "as well as" in our opinion play a significant role. It confers two different rights but such rights are to be enforced against the same person, viz., the industrial concern. Submission of the learned senior counsel that the second part of Section 29 having not referred to industrial concern, any property pledged, mortgaged, hypothecated or assigned to the financial corporation can be sold, in our opinion cannot be accepted. It is true that sub-section (1) of Section 29 speaks of guarantee. But such a guarantee is meant to be furnished by the Corporation in favour of a third party for the benefit of the industrial concern. It does not speak about a surety or guarantee given in favour of the corporation for the benefit of the industrial concern.16. The legislative object and intent becomes furthermore clear as in terms of Sub-section (4) of Section 29 of the Act only when a property is sold, the manner in which the sale proceeds is to be appropriated has categorically been provided therein. It is significant to notice that sub-section (4) of Section 29 of the Act which lays down appropriation of the sale proceeds only refers to industrial concern and not a surety orfail to see how the aforementioned statement of law comes to the aid to the contention of the learned counsel. Moreover Section 29 of the Act does not deal with a case where express and implied conditions have been laid down in the matter of exercise of power conferred upon a statutory authority under a Statute. Section 29 does not envisage any prohibition at all either express or implied. Let us consider the legal implication of the aforementioned statement of law in the light of a decision of this Court.Keeping the aforementioned legal principles in mind, we may notice the other limb of the argument of Mr. Venugopal that Section 31 of the Act is to be taken recourse to only when an interlocutory order is required to be sought for and not otherwise. Section 31 of the Act provides for a special provision. It, apart from the default on the part of the industrial concern, can be invoked where the financial corporation requires an industrial concern to make immediate repayment of loan or advance in terms of Section 30 if and when such requirement is not met. The aforementioned provision could be resorted to by the Corporation, without prejudice, to its rights under the provisions of Section 29 as also Section 69 of the Transfer of Property Act and for the said purpose it is required to apply to the District Judge having appropriate jurisdiction. Section 31 of the Act provides for the reliefs which may be sought for by the Corporation strictly in terms thereof. Clause (aa) of sub-section (1) of Section 31 of the Act provides for a final relief. It does not speak of any interlocutory order. Clause (aa), as noticed hereinbefore, has been inserted by Act No. 43 of 1985. Thus, prior thereto even Section 31 could not have been taken recourse to against a surety.23. Such a relief, if prayed for, would also lead to grant of a final relief and not an interlocutory one. Similarly, clause (b) of Sub-section (1) of Section 31 of the Act also provides for a final relief. Only clause (c) of Sub-section (1) of Section 31 of the Act empowers the District Judge in the event any application is filed by the Corporation to pass an ad interim injunction. The very fact that Section 31 uses the terminology "without prejudice" to the provisions of Section 29 of the Act and/ or Section 69 of the Transfer of Property Act, it clearly postulates an additional relief. What can be done by invoking Section 29 of the Act can inter alia be done by invoking Section 31 thereof also but therefor a different procedure has to be adopted. Section 31 also provides for a relief against a surety and not confined to the industrial concern alone. Sub-section (2) of Section 31 also refers to industrial concern and not the surety. The legislative intent, therefore, to our mind, is clear and unambiguous.The legislative intent, in our opinion, is manifest. The intention of the Parliament in enacting Sections 29 and 31 of the Act was not similar. Whereas Section 29 of the Act consists of the property of the industrial concern, Section 31 takes within its sweep both the property of the industrial concern and as that of the surety. None of the provisions control each other. The Parliament intended to provide an additional remedy for recovery of the amount in favour of the Corporation by proceeding against a surety only in terms of Section 31 of the Act and not under Section 29 thereof.Interpretation of a statute would not depend upon a contingency. It has to be interpreted on its own. It is a trite law that the court would ordinarily take recourse to the golden rule of literal interpretation. It is not a case where we are dealing with a defect in the legislative drafting. We cannot presume any. In a case where a court has to weigh between a right of recovery and protection of a right, it would also lean in favour of the person who is going to be deprived therefrom. It would not be the other way round. Only because a speedy remedy is provided for that would itself lead to the conclusion that the provisions of the Act have to be extended although the statute does not say so. The object of the Act would be a relevant factor for interpretation only when the language is not clear and when two meanings are possible and not in a case where the plain language leads to only one conclusion.33. Even if the legislation is beneficent, the same by itself would not be held to be extendable to a situation which the statute does not contemplate.It is now well-settled that when more than one remedy is provided for an option is given to a suiter to opt for one or the other remedy. Such a provision is not ultra vires as has been held by this Court in Maganlal Chhaganlal (P) Ltd. v. Municipal Corporation of Greater Bombay and Others [(1974) 2 SCC 402] , Director of Industries, U.P. and Others v. Deep Chand Agarwal [(1980) 2 SCC 332] Rajiv Anand (supra).For the views we have taken, it is not necessary for us to consider the question as to whether before a property is put to sale, possession is required to be taken. | 0 | 6,251 | 1,648 | ### 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:
Mills and Another [(1994) 2 SCC 647] , this Court held: "19. The right vested in the Corporation under Section 29 of the Act is besides the right already possessed at common law to institute a suit or the right available to it under Section 31 of the Act." Section 32G of the Act provides for an additional remedy. It is, however, interesting to note that while upholding the right of the Corporation to opt for either Section 29 or Section 31 of the Act, it was opined: "In our opinion the Corporation can initially take recourse to Section 31 of the Act but withdraw or abandon it at any stage and take recourse to the provisions of Section 29 of the Act, which section deals with not only the rights but also provides a self-contained remedy to the Corporation for recovery of its dues. If the Corporation chooses to take recourse to the remedy available under Section 31 of the Act and pursues the same to the logical conclusion and obtains an order or decree, it may thereafter execute the order or decree, in the manner provided by Section 32(7) and (8) of the Act. The Corporation, however, may withdraw or abandon the proceedings at that stage and take recourse to the provisions of Section 29 of the Act." 30. Right of property, although no longer a fundamental right, is still a constitutional right. It is also human right. In absence of any provision either expressly or by necessary implication, depriving a person there from, the court shall not construe a provision leaning in favour of such deprivation. Recently, this Court in P.T. Munichikkanna Reddy & Ors. v. Revamma & Ors. [(2007) 6 SCC 59] dealing with adverse possession opined: "Human rights have been historically considered in the realm of individual rights such as, right to health, right to livelihood, right to shelter and employment etc. but now human rights are gaining a multifaceted dimension. Right to property is also considered very much a part of the new dimension. Therefore, even claim of adverse possession has to be read in that context. The activist approach of the English Courts is quite visible from the judgment of Beaulane Properties Ltd. v. Palmer [2005 (3) WLR 554 : 2005 EWHC 817 (Ch.)] and JA Pye (Oxford) Ltd v. United Kingdom [2005] ECHR 921 [2005] 49 ERG 90, [2005] ECHR 921], The court herein tried to read the Human Rights position in the context of adverse possession. But what is commendable is that the dimension of human rights has widened so much that now property dispute issues are also being raised within the contours of human rights." 31. A surety may be a Director of the Company. He also may not be. Even if he is a close relative of the Director or the Managing Director of the Company, the same is not relevant. A Director of the Company is not an industrial concern. He in his capacity as a surety would certainly not be. A juristic person is a separate legal entity. Its veil can be lifted or pierced only in certain situations. [See Salomon v. Salomon and Co. [1897 AC 22], Dal Chand and Others v. Commissioner of Income Tax, Punjab (1944) 12 ITR 458, Juggilal Kamlapat vs. Commissioner of Income Tax, U.P. (1969) 1 SCR 988 = 1969 (73) ITR 702 and Kapila Hingorani v. State of Bihar (2003) 6 SCC 1 ] 32. Interpretation of a statute would not depend upon a contingency. It has to be interpreted on its own. It is a trite law that the court would ordinarily take recourse to the golden rule of literal interpretation. It is not a case where we are dealing with a defect in the legislative drafting. We cannot presume any. In a case where a court has to weigh between a right of recovery and protection of a right, it would also lean in favour of the person who is going to be deprived therefrom. It would not be the other way round. Only because a speedy remedy is provided for that would itself lead to the conclusion that the provisions of the Act have to be extended although the statute does not say so. The object of the Act would be a relevant factor for interpretation only when the language is not clear and when two meanings are possible and not in a case where the plain language leads to only one conclusion.33. Even if the legislation is beneficent, the same by itself would not be held to be extendable to a situation which the statute does not contemplate. [S. Sundaram Pillai, etc. v. V.R. Pattabiraman AIR 1985 SC 582 ]. In Attorney General v. Milne [1914-15] All E.R. Rep. 1061], Lord Dunedin states: "Now, prima facie one would expect that the scope of the two sets of provisions would be the same, i.e., in other words that the question must be answered as to those kinds of property which are swept in by s.2, just as much as to those which fall under s.1. Inasmuch, however, as this is a taxing statute, and the duty here is an additional duty, I consider that it must be shown that the words would clearly cover the individual case to which it is right to apply them." 34. It is now well-settled that when more than one remedy is provided for an option is given to a suiter to opt for one or the other remedy. Such a provision is not ultra vires as has been held by this Court in Maganlal Chhaganlal (P) Ltd. v. Municipal Corporation of Greater Bombay and Others [(1974) 2 SCC 402] , Director of Industries, U.P. and Others v. Deep Chand Agarwal [(1980) 2 SCC 332] Rajiv Anand (supra). CONCLUSION 35. For the views we have taken, it is not necessary for us to consider the question as to whether before a property is put to sale, possession is required to be taken.
### Response:
0
### Explanation:
third party for the benefit of the industrial concern. It does not speak about a surety or guarantee given in favour of the corporation for the benefit of the industrial concern.16. The legislative object and intent becomes furthermore clear as in terms of Sub-section (4) of Section 29 of the Act only when a property is sold, the manner in which the sale proceeds is to be appropriated has categorically been provided therein. It is significant to notice that sub-section (4) of Section 29 of the Act which lays down appropriation of the sale proceeds only refers to industrial concern and not a surety orfail to see how the aforementioned statement of law comes to the aid to the contention of the learned counsel. Moreover Section 29 of the Act does not deal with a case where express and implied conditions have been laid down in the matter of exercise of power conferred upon a statutory authority under a Statute. Section 29 does not envisage any prohibition at all either express or implied. Let us consider the legal implication of the aforementioned statement of law in the light of a decision of this Court.Keeping the aforementioned legal principles in mind, we may notice the other limb of the argument of Mr. Venugopal that Section 31 of the Act is to be taken recourse to only when an interlocutory order is required to be sought for and not otherwise. Section 31 of the Act provides for a special provision. It, apart from the default on the part of the industrial concern, can be invoked where the financial corporation requires an industrial concern to make immediate repayment of loan or advance in terms of Section 30 if and when such requirement is not met. The aforementioned provision could be resorted to by the Corporation, without prejudice, to its rights under the provisions of Section 29 as also Section 69 of the Transfer of Property Act and for the said purpose it is required to apply to the District Judge having appropriate jurisdiction. Section 31 of the Act provides for the reliefs which may be sought for by the Corporation strictly in terms thereof. Clause (aa) of sub-section (1) of Section 31 of the Act provides for a final relief. It does not speak of any interlocutory order. Clause (aa), as noticed hereinbefore, has been inserted by Act No. 43 of 1985. Thus, prior thereto even Section 31 could not have been taken recourse to against a surety.23. Such a relief, if prayed for, would also lead to grant of a final relief and not an interlocutory one. Similarly, clause (b) of Sub-section (1) of Section 31 of the Act also provides for a final relief. Only clause (c) of Sub-section (1) of Section 31 of the Act empowers the District Judge in the event any application is filed by the Corporation to pass an ad interim injunction. The very fact that Section 31 uses the terminology "without prejudice" to the provisions of Section 29 of the Act and/ or Section 69 of the Transfer of Property Act, it clearly postulates an additional relief. What can be done by invoking Section 29 of the Act can inter alia be done by invoking Section 31 thereof also but therefor a different procedure has to be adopted. Section 31 also provides for a relief against a surety and not confined to the industrial concern alone. Sub-section (2) of Section 31 also refers to industrial concern and not the surety. The legislative intent, therefore, to our mind, is clear and unambiguous.The legislative intent, in our opinion, is manifest. The intention of the Parliament in enacting Sections 29 and 31 of the Act was not similar. Whereas Section 29 of the Act consists of the property of the industrial concern, Section 31 takes within its sweep both the property of the industrial concern and as that of the surety. None of the provisions control each other. The Parliament intended to provide an additional remedy for recovery of the amount in favour of the Corporation by proceeding against a surety only in terms of Section 31 of the Act and not under Section 29 thereof.Interpretation of a statute would not depend upon a contingency. It has to be interpreted on its own. It is a trite law that the court would ordinarily take recourse to the golden rule of literal interpretation. It is not a case where we are dealing with a defect in the legislative drafting. We cannot presume any. In a case where a court has to weigh between a right of recovery and protection of a right, it would also lean in favour of the person who is going to be deprived therefrom. It would not be the other way round. Only because a speedy remedy is provided for that would itself lead to the conclusion that the provisions of the Act have to be extended although the statute does not say so. The object of the Act would be a relevant factor for interpretation only when the language is not clear and when two meanings are possible and not in a case where the plain language leads to only one conclusion.33. Even if the legislation is beneficent, the same by itself would not be held to be extendable to a situation which the statute does not contemplate.It is now well-settled that when more than one remedy is provided for an option is given to a suiter to opt for one or the other remedy. Such a provision is not ultra vires as has been held by this Court in Maganlal Chhaganlal (P) Ltd. v. Municipal Corporation of Greater Bombay and Others [(1974) 2 SCC 402] , Director of Industries, U.P. and Others v. Deep Chand Agarwal [(1980) 2 SCC 332] Rajiv Anand (supra).For the views we have taken, it is not necessary for us to consider the question as to whether before a property is put to sale, possession is required to be taken.
|
Pawan Kumar Gupta Vs. B.R. Gupta | it was last paid for the period for which the arrears of rent were legally recoverable from the tenant including the period subsequent thereto upto the end of the month previous to that in which payment or deposit is made and to continue to pay or deposit month by month by 15th of each succeeding month a sum equal to the rent at that rate.13. Sub-section (6) of Section 15 states that if a tenant makes payment or deposit as required by sub-section (1) or sub-section (3), no order shall be made for recovery of possession on the ground of default in the payment of rent by the tenant, but the Controller may allow such costs as he deem fit to the landlord. Sub-section (7) of Section 15 states that if a tenant fails to make payment or deposit as required by this section, the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application. The other important provision is sub-section (2) of Section 14 which states that no order for recovery of possession of any premises shall be made on the ground specified in clause (a) of the proviso to sub-section (1), if the tenant makes payment or deposit as required by Section 15. Thus, payment of rent as directed by the Controller under sub-section (1) of Section 15 is a must in order to avoid eviction under Section 14(1)(a).14. The first contention of the learned senior counsel for the tenant is that the order dated 07.02.2005 passed under Section 15(1) of the Act has been modified by the Rent Controller by his order dated 05.07.2011. Therefore, the Rent Controller was not justified in passing an order of eviction for non-payment of rent in terms of the order dated 7th February, 2005. There is no merit in this contention. As noticed above, the appellant claimed rent @ Rupees five hundred per month from 1st April, 2001 along with interest thereon by issuing a demand notice under Section 14(1)(a). Since tenant failed to comply with the demand made in the notice, the landlord filed the eviction petition under Section 14(1)(a) of the Act. The tenant filed a counter stating that he had paid the rent from time to time and that the landlord did not issue any receipt against the same. It was also contended that pursuant to the demand notice dated 19th January, 2004, he had sent the reply along with a demand draft for a sum of Rupees 18,000/- towards the rent @ Rupees five hundred per month from 1.4.2001 to 31.3.2004. The Rent Controller passed order dated 07.02.2005 under Section 15(1) of the Act, directing the tenant to pay or deposit a sum of Rupees five hundred per month with effect from 1.10.2004 within one month from the date of the order and further continue to pay or deposit future rent at the aforesaid rate month by month by 15th day of each succeeding month during trial. This order was passed because there was dispute in relation to payment of rent from 1.4.2001 till 30.9.2004. The question relating payment of rent for this period was kept open. After trial, the Rent Controller came to the conclusion that the tenant has failed to establish the payment of arrears of rents from 1.4.2001. The tenant has also failed to pay the rents from 1.10.2004 in terms of the order dated 07.02.2005. In the circumstances, it is futile to contend that that the order dated 07.02.2005 has merged with the order dated 05.07.2011.15. The second contention of the appellant is that the court below has not considered condonation of delay in payment of rent having regard to the decision in Ram Murti (supra). It is his submission that the decision relied on by the High Court in Hem Chand (supra) has been impliedly overruled in Shyamcharan Sharma (supra). In Hem Chand (supra) this Court has held that the Rent Controller has no discretion to extend the time for payment of rent under Section 15(1) of the Act. However, in Ram Murti (supra) this Court after taking into consideration the decision in Shyamcharan Sharma (supra) has held that Rent Controller has power to condone the default on the part of the tenant in making payment or deposit of the future rents. This decision has application in a case where the tenant seeks condonation of delay in payment of rents. It is relevant to notice here that the tenant is a willful defaulter of rents. He took a stand before the Rent Controller that he had paid the entire arrears of rent. The Rent Controller passed an order dated 07.02.2005 under Section 15(1) of the Act directing him to pay or deposit the rent at the rate of L 500/- per month with effect from 1.10.2004 and continue to pay the same at the aforesaid rate month by month. Admittedly, he has failed to pay the rent in terms of the said order. After conclusion of the trial, the Rent Controller allowed the petition by order dated 27.4.2010 under Section 14(1)(a) of the Act. The Rent Controller held that the tenant failed to prove that he had tendered the rent to the landlord pursuant to the demand notice dated 19.1.2004. The Rent Controller directed the Nazir to submit a report for the purpose of consideration of entitlement of the tenant to the benefit under Section 14(2) of the Act. The Nazirs report showed that the tenant had not paid the rent regularly in compliance with the order passed under Section 15(1) of the Act. There was a long delay in deposit of rents. Condonation of delay can take place only when the defaulting tenants so pleads with justifiable reasons which would show that he was prevented from compliance by circumstances beyond his control. The tenant has not offered any explanation for the delay in deposit of rents. Therefore, we do not find any justification to interfere with the order of the High Court. | 0[ds]It is clear that if the tenant pays the arrears of rent within two months of service of notice, the landlord cannot get order for recovery of possession on the ground of default in payment of rent but if the tenant fails to pay the rent as required under Section 14(1)(a), the proceedings are taken under Section 15(1) of the Act. Under this provision the Controller shall, after giving the parties opportunity of being heard, make an order directing the tenant to pay the landlord or deposit with the Controller within one month of the date of the order, an amount calculated at the rate of rent at which it was last paid for the period for which the arrears of rent were legally recoverable from the tenant including the period subsequent thereto upto the end of the month previous to that in which payment or deposit is made and to continue to pay or deposit month by month by 15th of each succeeding month a sum equal to the rent at thattenant failed to comply with the demand made in the notice, the landlord filed the eviction petition under Section 14(1)(a) of the Act. The tenant filed a counter stating that he had paid the rent from time to time and that the landlord did not issue any receipt against the same. It was also contended that pursuant to the demand notice dated 19th January, 2004, he had sent the reply along with a demand draft for a sum of Rupees 18,000/towards the rent @ Rupees five hundred per month from 1.4.2001 to 31.3.2004. The Rent Controller passed order dated 07.02.2005 under Section 15(1) of the Act, directing the tenant to pay or deposit a sum of Rupees five hundred per month with effect from 1.10.2004 within one month from the date of the order and further continue to pay or deposit future rent at the aforesaid rate month by month by 15th day of each succeeding month during trial. This order was passed because there was dispute in relation to payment of rent from 1.4.2001 till 30.9.2004. The question relating payment of rent for this period was kept open. After trial, the Rent Controller came to the conclusion that the tenant has failed to establish the payment of arrears of rents from 1.4.2001. The tenant has also failed to pay the rents from 1.10.2004 in terms of the order dated 07.02.2005. In the circumstances, it is futile to contend that that the order dated 07.02.2005 has merged with the order datedhe has failed to pay the rent in terms of the said order. After conclusion of the trial, the Rent Controller allowed the petition by order dated 27.4.2010 under Section 14(1)(a) of the Act. The Rent Controller held that the tenant failed to prove that he had tendered the rent to the landlord pursuant to the demand notice dated 19.1.2004. The Rent Controller directed the Nazir to submit a report for the purpose of consideration of entitlement of the tenant to the benefit under Section 14(2) of the Act. The Nazirs report showed that the tenant had not paid the rent regularly in compliance with the order passed under Section 15(1) of the Act. There was a long delay in deposit of rents. Condonation of delay can take place only when the defaulting tenants so pleads with justifiable reasons which would show that he was prevented from compliance by circumstances beyond his control. The tenant has not offered any explanation for the delay in deposit of rents. Therefore, we do not find any justification to interfere with the order of the High Court. | 0 | 3,151 | 671 | ### 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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it was last paid for the period for which the arrears of rent were legally recoverable from the tenant including the period subsequent thereto upto the end of the month previous to that in which payment or deposit is made and to continue to pay or deposit month by month by 15th of each succeeding month a sum equal to the rent at that rate.13. Sub-section (6) of Section 15 states that if a tenant makes payment or deposit as required by sub-section (1) or sub-section (3), no order shall be made for recovery of possession on the ground of default in the payment of rent by the tenant, but the Controller may allow such costs as he deem fit to the landlord. Sub-section (7) of Section 15 states that if a tenant fails to make payment or deposit as required by this section, the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application. The other important provision is sub-section (2) of Section 14 which states that no order for recovery of possession of any premises shall be made on the ground specified in clause (a) of the proviso to sub-section (1), if the tenant makes payment or deposit as required by Section 15. Thus, payment of rent as directed by the Controller under sub-section (1) of Section 15 is a must in order to avoid eviction under Section 14(1)(a).14. The first contention of the learned senior counsel for the tenant is that the order dated 07.02.2005 passed under Section 15(1) of the Act has been modified by the Rent Controller by his order dated 05.07.2011. Therefore, the Rent Controller was not justified in passing an order of eviction for non-payment of rent in terms of the order dated 7th February, 2005. There is no merit in this contention. As noticed above, the appellant claimed rent @ Rupees five hundred per month from 1st April, 2001 along with interest thereon by issuing a demand notice under Section 14(1)(a). Since tenant failed to comply with the demand made in the notice, the landlord filed the eviction petition under Section 14(1)(a) of the Act. The tenant filed a counter stating that he had paid the rent from time to time and that the landlord did not issue any receipt against the same. It was also contended that pursuant to the demand notice dated 19th January, 2004, he had sent the reply along with a demand draft for a sum of Rupees 18,000/- towards the rent @ Rupees five hundred per month from 1.4.2001 to 31.3.2004. The Rent Controller passed order dated 07.02.2005 under Section 15(1) of the Act, directing the tenant to pay or deposit a sum of Rupees five hundred per month with effect from 1.10.2004 within one month from the date of the order and further continue to pay or deposit future rent at the aforesaid rate month by month by 15th day of each succeeding month during trial. This order was passed because there was dispute in relation to payment of rent from 1.4.2001 till 30.9.2004. The question relating payment of rent for this period was kept open. After trial, the Rent Controller came to the conclusion that the tenant has failed to establish the payment of arrears of rents from 1.4.2001. The tenant has also failed to pay the rents from 1.10.2004 in terms of the order dated 07.02.2005. In the circumstances, it is futile to contend that that the order dated 07.02.2005 has merged with the order dated 05.07.2011.15. The second contention of the appellant is that the court below has not considered condonation of delay in payment of rent having regard to the decision in Ram Murti (supra). It is his submission that the decision relied on by the High Court in Hem Chand (supra) has been impliedly overruled in Shyamcharan Sharma (supra). In Hem Chand (supra) this Court has held that the Rent Controller has no discretion to extend the time for payment of rent under Section 15(1) of the Act. However, in Ram Murti (supra) this Court after taking into consideration the decision in Shyamcharan Sharma (supra) has held that Rent Controller has power to condone the default on the part of the tenant in making payment or deposit of the future rents. This decision has application in a case where the tenant seeks condonation of delay in payment of rents. It is relevant to notice here that the tenant is a willful defaulter of rents. He took a stand before the Rent Controller that he had paid the entire arrears of rent. The Rent Controller passed an order dated 07.02.2005 under Section 15(1) of the Act directing him to pay or deposit the rent at the rate of L 500/- per month with effect from 1.10.2004 and continue to pay the same at the aforesaid rate month by month. Admittedly, he has failed to pay the rent in terms of the said order. After conclusion of the trial, the Rent Controller allowed the petition by order dated 27.4.2010 under Section 14(1)(a) of the Act. The Rent Controller held that the tenant failed to prove that he had tendered the rent to the landlord pursuant to the demand notice dated 19.1.2004. The Rent Controller directed the Nazir to submit a report for the purpose of consideration of entitlement of the tenant to the benefit under Section 14(2) of the Act. The Nazirs report showed that the tenant had not paid the rent regularly in compliance with the order passed under Section 15(1) of the Act. There was a long delay in deposit of rents. Condonation of delay can take place only when the defaulting tenants so pleads with justifiable reasons which would show that he was prevented from compliance by circumstances beyond his control. The tenant has not offered any explanation for the delay in deposit of rents. Therefore, we do not find any justification to interfere with the order of the High Court.
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It is clear that if the tenant pays the arrears of rent within two months of service of notice, the landlord cannot get order for recovery of possession on the ground of default in payment of rent but if the tenant fails to pay the rent as required under Section 14(1)(a), the proceedings are taken under Section 15(1) of the Act. Under this provision the Controller shall, after giving the parties opportunity of being heard, make an order directing the tenant to pay the landlord or deposit with the Controller within one month of the date of the order, an amount calculated at the rate of rent at which it was last paid for the period for which the arrears of rent were legally recoverable from the tenant including the period subsequent thereto upto the end of the month previous to that in which payment or deposit is made and to continue to pay or deposit month by month by 15th of each succeeding month a sum equal to the rent at thattenant failed to comply with the demand made in the notice, the landlord filed the eviction petition under Section 14(1)(a) of the Act. The tenant filed a counter stating that he had paid the rent from time to time and that the landlord did not issue any receipt against the same. It was also contended that pursuant to the demand notice dated 19th January, 2004, he had sent the reply along with a demand draft for a sum of Rupees 18,000/towards the rent @ Rupees five hundred per month from 1.4.2001 to 31.3.2004. The Rent Controller passed order dated 07.02.2005 under Section 15(1) of the Act, directing the tenant to pay or deposit a sum of Rupees five hundred per month with effect from 1.10.2004 within one month from the date of the order and further continue to pay or deposit future rent at the aforesaid rate month by month by 15th day of each succeeding month during trial. This order was passed because there was dispute in relation to payment of rent from 1.4.2001 till 30.9.2004. The question relating payment of rent for this period was kept open. After trial, the Rent Controller came to the conclusion that the tenant has failed to establish the payment of arrears of rents from 1.4.2001. The tenant has also failed to pay the rents from 1.10.2004 in terms of the order dated 07.02.2005. In the circumstances, it is futile to contend that that the order dated 07.02.2005 has merged with the order datedhe has failed to pay the rent in terms of the said order. After conclusion of the trial, the Rent Controller allowed the petition by order dated 27.4.2010 under Section 14(1)(a) of the Act. The Rent Controller held that the tenant failed to prove that he had tendered the rent to the landlord pursuant to the demand notice dated 19.1.2004. The Rent Controller directed the Nazir to submit a report for the purpose of consideration of entitlement of the tenant to the benefit under Section 14(2) of the Act. The Nazirs report showed that the tenant had not paid the rent regularly in compliance with the order passed under Section 15(1) of the Act. There was a long delay in deposit of rents. Condonation of delay can take place only when the defaulting tenants so pleads with justifiable reasons which would show that he was prevented from compliance by circumstances beyond his control. The tenant has not offered any explanation for the delay in deposit of rents. Therefore, we do not find any justification to interfere with the order of the High Court.
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VASANT CHEMICALS LTD Vs. HYDERABAD METROPOLITAN WATER SUPPLY AND SEWERAGE BOARD THE MANAGING DIRECTOR | JETL if they are not found to be consistent with the prescribed parameters;4. In terms of Clause 28, an amount of rupees one lakh per month is to be paid by JETL towards maintenance of the sewer line. Additionally, JETL has to pay sewerage maintenance and sewerage treatment charges @ Rs.6 per thousand litres of treated effluents;5. Further, as per Clause 29, a surcharge was also levied on JETL for permitting industrial effluents beyond the limits prescribed on two important parameters viz. Chemical Oxygen Demand (COD) and T otal Dissolved Solids (TDS); Each parameter/COD and TDS will be considered independent for levy the surcharge.36. In terms of Rule 4 of Sewerage Rules, the Board shall charge on the applicants seeking to discharge the trade or industrial effluents etc. Rule 4 reads as under:-“Sewerage and Industrial Effluents-4. The Board shall charge on applicants seeking to discharge their trade or industrial effluents, sullage drain, sewer (other than storm sewer or combined sewer) of a private party, State Government, Central Government, or local body or local authority, into Board sewers, towards the special treatment cost of such sewage and the charges shall be as fixed by the Board from time to time, depending upon the nature of such sewage and cost of treatment involved to bring the same within tolerance limits of effluent standards etc. The installation and maintenance of required meters for measuring the volume of effluents shall be insisted at the cost of the applicants, by the board.”Subject to the provisions of Water Act, 1974 and Environment Act, 1986 and subject to the restrictions of Section 54 of HMWS&S Act and in terms of Rule 4 and other terms and conditions, Board has the right to permit the ‘applicants’ seeking to discharge their trade or industrial effluents into the Board’s sewer system and Sewerage Treatment Plant subject to the imposition of costs. The treatment for letting the trade or industrial effluents into the Board’s sewer shall be subject to such terms and conditions and in such form of agreement as may be prescribed in the regulations made by the Board in accordance with these rules. Having entered into the agreement with the Board on 31.08.2000 and on prior dates, JETL cannot turn around and challenge the terms and conditions imposed upon it by virtue of the agreement.37. So far as the various payments made by JETL to the Board, levy is in terms of Rule 4 of the Sewerage Rules and as per the contract and is purely contractual between JETL and the respondent Board for letting partially treated the industrial effluents of the appellant and other units into the Board’s sewer. Likewise, charges paid by JETL to the Board cannot be said to be in lieu of the sewerage cess that the appellant unit is liable to pay which is a statutory liability. It is pertinent to note that many industries about fifty units, apart from the appellant unit, discharge their effluents to the CETP/JETL. The agreement dated 31.08.2000 and the earlier agreements between JETL and the Board are purely contractual consciously entered into between the parties.38. JETL lets partially treated effluents into the Board’s sewerage system for further treatment. As discussed earlier, for further treatment of sewerage, the effluents are to be taken to Sewerage Treatment Plant (STP) at Amberpet which is situated at the distance of 08.30 kilometres from Balanagar. It requires huge amount for transmission of the effluents to Board’s sewer system at Amberpet where the Board brings down the industrial effluents to tolerance limits. As pointed out earlier, the treatment of industrial effluents requires high demand of energy, personnel to operate the system and skilled workers for maintenance of the plant. Unless the Board collects sewerage charge/sewerage surcharge, the Board cannot meet the heavy expenditure on the operation and maintenance of sewerage system. Various other members of JETL who discharge sewage into JETL which is ultimately let into Board sewer line, may or may not be consumers of water supply by the Board. That apart, members of JETL may have their own source of water supply or they may supplement the supply of water from the Board through different sources either by extraction of ground water or supply through tankers which cannot be quantified by the Board. In pursuance of the provisions of the HMWS&S Act and the Sewerage Rules and pursuant to the agreement dated 31.08.2000, the charges are levied on JETL who in turn collects the charges from its member industrial units who discharge their effluents into JETL. Therefore, the payments made by JETL to the Board and the charges in turn collected by JETL from the appellant and other member units, cannot absolve the appellant unit from its statutory liability to pay the sewerage cess. We find no merit in the contention that there is double levy of sewerage cess.39. Levy of sewerage cess being a statutory levy in terms of Section 55 of HMWS&S Act and Clause 16 of the agreement which incorporates the statutory levy under Section 55 of HMWS&S Act, the learned Single Judge and the Division Bench rightly recorded concurrent findings upholding the levy. Observing that the appellant being occupier of the premises, though not directly connected to the sewer line of the Board, is ultimately letting into the sewerage system of the Board after partial treatment at JETL, the High Court was right in holding that the levy of sewerage cess is in accordance with Section 55 of HMWS&S Act. The payment of sewerage surcharges and the other charges by JETL cannot take away the statutory liability of sewerage cess levied on the occupier of the premises who consumes water and lets out the sewage into the Board sewer system. The payment of sewerage surcharge and other charges by JETL to the respondent-Board will not amount to double levy and the High Court rightly dismissed the writ petitions and also the review petitions filed by the appellant. The impugned order does not suffer from any infirmity warranting interference. | 0[ds]Admittedly, JETL is neither a consumer of bulk water supply nor generating any sewage/industrial effluents of its own. The effluents of the appellant industry are not of acceptable standards for transmissionsystem of theBoard. Before the effluents of the appellant industry are to be let into the sewer line of the Board, the appellant industry has to get the effluents treated at its own cost to bring the quality of the effluents to an acceptable level. After getting partial treatment from JETL, the effluents are let into the said dedicated pipeline which belongs to the Board at Kukutpally/Balanagar and then they are let into 1000 mm diameter sewage trunk belonging to the Board through which the effluents are carried to Sewerage Treatment Plant (STP) at Amberpet measuring a distance of 18.90 kilo meters. The length of the pipeline from JETL to Amberpet is 29.28 kilo meters. Though theunit is not directly connected with the Board sewer line, the industrial effluents of the appellant unit partially treated at JETL are ultimately let into the Board sewer line which is finally carried to STP at Amberpet. In the light of this admitted factual position, the appellant is liable to pay sewerage cess under Section 55 of the Act. Proviso to Section 55 of the Act contemplates that the sewerage cess shall not be levied on the occupier of the premises if such premises is stated to be in an area which is not served by the seweragesystem of theBoard. The proviso implies that the occupier of such premises cannot use the Board sewer by any means whatsoever. Therefore, the contention of the appellant that it is not liable to pay sewerage cess to the Board as it is not directly letting out sewage effluents into the sewage line of the Board and that it is carrying its effluents in the tanker, lorries and letting out in the effluent treatment plant of JETL and thus not connected with the sewagesystem of theBoard, in our view, is wholly untenable. Since the sewage of the appellant is ultimately let into the sewer line of the Board, the appellant cannot contend that it is not covered under Section 55 of the Act and that it is covered under proviso to Section 55 of theagreement between the appellant and JETL for partial treatment ofindustrial effluents is the internal contractual agreement between JETL and the appellant. The appellant unit is to treat and process the industrial effluents and bring them down to permissible standard limits in accordance with the provisions of Water Act, 1974 and Environment Act, 1986 relating to discharge and disposal of industrial effluents and other objectionable effluents into sewers before discharging of the effluents into the Board sewer. The treated effluents should also have to conform to the IS specification laid down from time to time for disposal of effluent into the domestic sewer of the Board.discharge their contractual obligation in bringing the industrial effluents to permissible standard limits, the appellant unit entered into an agreement dated 22.01.1996 with JETL engaging it to treat its industrial effluents in accordance with the environmental laws in force. The appellant instead of treating the effluents at its premises at its own cost engaged JETL for treating its effluents. Thus, for its convenience, the appellant unit has entered into an agreement with JETL for treating its effluents and the charges paid by them to JETL are towards the treatment of effluents and bring it to permissible standards. Therefore, the function of JETL is that of an intermediary with whose assistance, the appellant is discharging its statutory obligation.24. Admittedly, theindustrial effluents are carried to JETL in closed tankers and after partial treatment at JETL, let into thesewer line. Admittedly, the effluents of theunit are not of acceptable standards for transmission through the sewer line of the Board and therefore, theindustry and other industries have to get the effluents treated at their own cost to bring the quality of the effluents to an acceptable level by treating the same to some extent. The sewerage cess of 35% levied by the Board is for carrying the sewerage of acceptable quality through its sewer line and further treating it at STP at Amberpet.25. The sewerage cess aims to recover the cost of treating the effluents of strength stronger than domestic sewage and to make the effluents of acceptable quality. In addition to partial treatment at JETL, the effluents require further treatment and their transmission to Sewer Treatment Plant (STP) at Amberpet situated at 18.90 kms from Bala Nagar which requires huge finance. The maintenance of sewer line is highly essential for proper transmission of the effluents from JETL tosewer system at Amperpet where the Board brings down the industrial effluents to the tolerance limits. It requires huge amount to maintain the STP treatment of industrial effluents. Further, it requires high demand of energy, STP personnel to operate and maintain the system, skilled and unskilled workers for proper maintenance of the plant. The respondent-Board unless it collects sewerage cess and other charges cannot meet the heavy expenditure on the operation and maintenance of sewerage system. The liability of the appellant to pay sewerage cess to the Board arises from the Statute and also by way of an agreement which was agreed upon by the appellant. There is no merit in the contention of the appellant unit that its liability has ended upon transferring the industrial effluents to the respondent-JETL and that it is not connected to thesewer line. As discussed earlier, the partially treated effluents of theunit are ultimately let into the sewer line provided by the Board which is being carried to Amberpet STP for further treatment and discharge. After partial treatment at JETL, wheneffluents are let into thesewage system, the appellant is not justified in contending that it is not connected to the sewer line of the Board and hence, covered under the proviso to Section 55 of the Act.26. It is well-settled that the normal function of a proviso is to except something out of the enactment.30. As rightly contended by learned senior counsel for the respondent-Board, the plea of double payment of sewerage cess was never raised in the writ petition filed by the appellant; but it was raised by way of oral submission before the High Court and thereafter, by way of review petition. The plea of double levy was rightly rejected by the High Court inter alia holding thatassuming for a moment that the petitioner-company is paying some amounts to the JETL, it cannot be said that it is towards sewerage. As pointed out by the learned senior counsel for the respondent-Board, JETL never sought to implead itself as a party respondent in the writ petition filed by the Board. It is also pertinent to point out that one Mr. G.K.B. Chowdary who was then the Managing Director of the appellant-group of companies, was also the Managing Director of JETL. It passescomprehension as to why JETL whose Managing Director is the same as the Managing Director of the appellant Group of Companies had not taken any step to get themselves impleaded in the writ petition before the High Court and raise the plea of double taxation.Insofar as the charges paid by the appellant to JETL for the treatment and processing of its effluents, it is purely contractual pursuant to the agreement entered into between the appellant unit and JETL dated 01.04.2000 and the earlier agreement dated 22.01.1996. As pointed out earlier, the appellant unit is obligated to treat and process the industrial effluents and bring them down to permissible standard limits in accordance with the provisions of the Water Act, 1974 and Environment Act, 1986 before they are let into the sewer line of the Board.discharge its statutory as well as contractual obligation, the appellant unit has entered into agreement with JETL for the treatment and processing ofeffluents before being let intosewer line. Payment of charges by the appellant to JETL is purely contractual between the parties and the same cannot be considered to be in deference to the statutory cess/statutory charge which can only be levied by the Board. In this regard, the High Court has rightly observed that assuming that the appellant is paying some amount to JETL, the same cannot be termed ast to the provisions of Water Act, 1974 and Environment Act, 1986 and subject to the restrictions of Section 54 of HMWS&S Act and in terms of Rule 4 and other terms and conditions, Board has the right to permit theseeking to discharge their trade or industrial effluents into thesewer system and Sewerage Treatment Plant subject to the imposition of costs. The treatment for letting the trade or industrial effluents into thesewer shall be subject to such terms and conditions and in such form of agreement as may be prescribed in the regulations made by the Board in accordance with these rules. Having entered into the agreement with the Board on 31.08.2000 and on prior dates, JETL cannot turn around and challenge the terms and conditions imposed upon it by virtue of the agreement.37. So far as the various payments made by JETL to the Board, levy is in terms of Rule 4 of the Sewerage Rules and as per the contract and is purely contractual between JETL and the respondent Board for letting partially treated the industrial effluents of the appellant and other units into thesewer. Likewise, charges paid by JETL to the Board cannot be said to be in lieu of the sewerage cess that the appellant unit is liable to pay which is a statutory liability. It is pertinent to note that many industries about fifty units, apart from the appellant unit, discharge their effluents to the CETP/JETL. The agreement dated 31.08.2000 and the earlier agreements between JETL and the Board are purely contractual consciously entered into between the parties.38. JETL lets partially treated effluents into thesewerage system for further treatment. As discussed earlier, for further treatment of sewerage, the effluents are to be taken to Sewerage Treatment Plant (STP) at Amberpet which is situated at the distance of 08.30 kilometres from Balanagar. It requires huge amount for transmission of the effluents tosewer system at Amberpet where the Board brings down the industrial effluents to tolerance limits. As pointed out earlier, the treatment of industrial effluents requires high demand of energy, personnel to operate the system and skilled workers for maintenance of the plant. Unless the Board collects sewerage charge/sewerage surcharge, the Board cannot meet the heavy expenditure on the operation and maintenance of sewerage system. Various other members of JETL who discharge sewage into JETL which is ultimately let into Board sewer line, may or may not be consumers of water supply by the Board. That apart, members of JETL may have their own source of water supply or they may supplement the supply of water from the Board through different sources either by extraction of ground water or supply through tankers which cannot be quantified by the Board. In pursuance of the provisions of the HMWS&S Act and the Sewerage Rules and pursuant to the agreement dated 31.08.2000, the charges are levied on JETL who in turn collects the charges from its member industrial units who discharge their effluents into JETL. Therefore, the payments made by JETL to the Board and the charges in turn collected by JETL from the appellant and other member units, cannot absolve the appellant unit from its statutory liability to pay the sewerage cess. We find no merit in the contention that there is double levy of sewerage cess.39. Levy of sewerage cess being a statutory levy in terms of Section 55 of HMWS&S Act and Clause 16 of the agreement which incorporates the statutory levy under Section 55 of HMWS&S Act, the learned Single Judge and the Division Bench rightly recorded concurrent findings upholding the levy. Observing that the appellant being occupier of the premises, though not directly connected to the sewer line of the Board, is ultimately letting into the seweragesystem of theBoard after partial treatment at JETL, the High Court was right in holding that the levy of sewerage cess is in accordance with Section 55 of HMWS&S Act. The payment of sewerage surcharges and the other charges by JETL cannot take away the statutory liability of sewerage cess levied on the occupier of the premises who consumes water and lets out the sewage into the Board sewer system. The payment of sewerage surcharge and other charges by JETL to the respondent-Board will not amount to double levy and the High Court rightly dismissed the writ petitions and also the review petitions filed by the appellant. The impugned order does not suffer from any infirmity warranting interference. | 0 | 8,669 | 2,273 | ### 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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JETL if they are not found to be consistent with the prescribed parameters;4. In terms of Clause 28, an amount of rupees one lakh per month is to be paid by JETL towards maintenance of the sewer line. Additionally, JETL has to pay sewerage maintenance and sewerage treatment charges @ Rs.6 per thousand litres of treated effluents;5. Further, as per Clause 29, a surcharge was also levied on JETL for permitting industrial effluents beyond the limits prescribed on two important parameters viz. Chemical Oxygen Demand (COD) and T otal Dissolved Solids (TDS); Each parameter/COD and TDS will be considered independent for levy the surcharge.36. In terms of Rule 4 of Sewerage Rules, the Board shall charge on the applicants seeking to discharge the trade or industrial effluents etc. Rule 4 reads as under:-“Sewerage and Industrial Effluents-4. The Board shall charge on applicants seeking to discharge their trade or industrial effluents, sullage drain, sewer (other than storm sewer or combined sewer) of a private party, State Government, Central Government, or local body or local authority, into Board sewers, towards the special treatment cost of such sewage and the charges shall be as fixed by the Board from time to time, depending upon the nature of such sewage and cost of treatment involved to bring the same within tolerance limits of effluent standards etc. The installation and maintenance of required meters for measuring the volume of effluents shall be insisted at the cost of the applicants, by the board.”Subject to the provisions of Water Act, 1974 and Environment Act, 1986 and subject to the restrictions of Section 54 of HMWS&S Act and in terms of Rule 4 and other terms and conditions, Board has the right to permit the ‘applicants’ seeking to discharge their trade or industrial effluents into the Board’s sewer system and Sewerage Treatment Plant subject to the imposition of costs. The treatment for letting the trade or industrial effluents into the Board’s sewer shall be subject to such terms and conditions and in such form of agreement as may be prescribed in the regulations made by the Board in accordance with these rules. Having entered into the agreement with the Board on 31.08.2000 and on prior dates, JETL cannot turn around and challenge the terms and conditions imposed upon it by virtue of the agreement.37. So far as the various payments made by JETL to the Board, levy is in terms of Rule 4 of the Sewerage Rules and as per the contract and is purely contractual between JETL and the respondent Board for letting partially treated the industrial effluents of the appellant and other units into the Board’s sewer. Likewise, charges paid by JETL to the Board cannot be said to be in lieu of the sewerage cess that the appellant unit is liable to pay which is a statutory liability. It is pertinent to note that many industries about fifty units, apart from the appellant unit, discharge their effluents to the CETP/JETL. The agreement dated 31.08.2000 and the earlier agreements between JETL and the Board are purely contractual consciously entered into between the parties.38. JETL lets partially treated effluents into the Board’s sewerage system for further treatment. As discussed earlier, for further treatment of sewerage, the effluents are to be taken to Sewerage Treatment Plant (STP) at Amberpet which is situated at the distance of 08.30 kilometres from Balanagar. It requires huge amount for transmission of the effluents to Board’s sewer system at Amberpet where the Board brings down the industrial effluents to tolerance limits. As pointed out earlier, the treatment of industrial effluents requires high demand of energy, personnel to operate the system and skilled workers for maintenance of the plant. Unless the Board collects sewerage charge/sewerage surcharge, the Board cannot meet the heavy expenditure on the operation and maintenance of sewerage system. Various other members of JETL who discharge sewage into JETL which is ultimately let into Board sewer line, may or may not be consumers of water supply by the Board. That apart, members of JETL may have their own source of water supply or they may supplement the supply of water from the Board through different sources either by extraction of ground water or supply through tankers which cannot be quantified by the Board. In pursuance of the provisions of the HMWS&S Act and the Sewerage Rules and pursuant to the agreement dated 31.08.2000, the charges are levied on JETL who in turn collects the charges from its member industrial units who discharge their effluents into JETL. Therefore, the payments made by JETL to the Board and the charges in turn collected by JETL from the appellant and other member units, cannot absolve the appellant unit from its statutory liability to pay the sewerage cess. We find no merit in the contention that there is double levy of sewerage cess.39. Levy of sewerage cess being a statutory levy in terms of Section 55 of HMWS&S Act and Clause 16 of the agreement which incorporates the statutory levy under Section 55 of HMWS&S Act, the learned Single Judge and the Division Bench rightly recorded concurrent findings upholding the levy. Observing that the appellant being occupier of the premises, though not directly connected to the sewer line of the Board, is ultimately letting into the sewerage system of the Board after partial treatment at JETL, the High Court was right in holding that the levy of sewerage cess is in accordance with Section 55 of HMWS&S Act. The payment of sewerage surcharges and the other charges by JETL cannot take away the statutory liability of sewerage cess levied on the occupier of the premises who consumes water and lets out the sewage into the Board sewer system. The payment of sewerage surcharge and other charges by JETL to the respondent-Board will not amount to double levy and the High Court rightly dismissed the writ petitions and also the review petitions filed by the appellant. The impugned order does not suffer from any infirmity warranting interference.
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petition filed by the Board. It is also pertinent to point out that one Mr. G.K.B. Chowdary who was then the Managing Director of the appellant-group of companies, was also the Managing Director of JETL. It passescomprehension as to why JETL whose Managing Director is the same as the Managing Director of the appellant Group of Companies had not taken any step to get themselves impleaded in the writ petition before the High Court and raise the plea of double taxation.Insofar as the charges paid by the appellant to JETL for the treatment and processing of its effluents, it is purely contractual pursuant to the agreement entered into between the appellant unit and JETL dated 01.04.2000 and the earlier agreement dated 22.01.1996. As pointed out earlier, the appellant unit is obligated to treat and process the industrial effluents and bring them down to permissible standard limits in accordance with the provisions of the Water Act, 1974 and Environment Act, 1986 before they are let into the sewer line of the Board.discharge its statutory as well as contractual obligation, the appellant unit has entered into agreement with JETL for the treatment and processing ofeffluents before being let intosewer line. Payment of charges by the appellant to JETL is purely contractual between the parties and the same cannot be considered to be in deference to the statutory cess/statutory charge which can only be levied by the Board. In this regard, the High Court has rightly observed that assuming that the appellant is paying some amount to JETL, the same cannot be termed ast to the provisions of Water Act, 1974 and Environment Act, 1986 and subject to the restrictions of Section 54 of HMWS&S Act and in terms of Rule 4 and other terms and conditions, Board has the right to permit theseeking to discharge their trade or industrial effluents into thesewer system and Sewerage Treatment Plant subject to the imposition of costs. The treatment for letting the trade or industrial effluents into thesewer shall be subject to such terms and conditions and in such form of agreement as may be prescribed in the regulations made by the Board in accordance with these rules. Having entered into the agreement with the Board on 31.08.2000 and on prior dates, JETL cannot turn around and challenge the terms and conditions imposed upon it by virtue of the agreement.37. So far as the various payments made by JETL to the Board, levy is in terms of Rule 4 of the Sewerage Rules and as per the contract and is purely contractual between JETL and the respondent Board for letting partially treated the industrial effluents of the appellant and other units into thesewer. Likewise, charges paid by JETL to the Board cannot be said to be in lieu of the sewerage cess that the appellant unit is liable to pay which is a statutory liability. It is pertinent to note that many industries about fifty units, apart from the appellant unit, discharge their effluents to the CETP/JETL. The agreement dated 31.08.2000 and the earlier agreements between JETL and the Board are purely contractual consciously entered into between the parties.38. JETL lets partially treated effluents into thesewerage system for further treatment. As discussed earlier, for further treatment of sewerage, the effluents are to be taken to Sewerage Treatment Plant (STP) at Amberpet which is situated at the distance of 08.30 kilometres from Balanagar. It requires huge amount for transmission of the effluents tosewer system at Amberpet where the Board brings down the industrial effluents to tolerance limits. As pointed out earlier, the treatment of industrial effluents requires high demand of energy, personnel to operate the system and skilled workers for maintenance of the plant. Unless the Board collects sewerage charge/sewerage surcharge, the Board cannot meet the heavy expenditure on the operation and maintenance of sewerage system. Various other members of JETL who discharge sewage into JETL which is ultimately let into Board sewer line, may or may not be consumers of water supply by the Board. That apart, members of JETL may have their own source of water supply or they may supplement the supply of water from the Board through different sources either by extraction of ground water or supply through tankers which cannot be quantified by the Board. In pursuance of the provisions of the HMWS&S Act and the Sewerage Rules and pursuant to the agreement dated 31.08.2000, the charges are levied on JETL who in turn collects the charges from its member industrial units who discharge their effluents into JETL. Therefore, the payments made by JETL to the Board and the charges in turn collected by JETL from the appellant and other member units, cannot absolve the appellant unit from its statutory liability to pay the sewerage cess. We find no merit in the contention that there is double levy of sewerage cess.39. Levy of sewerage cess being a statutory levy in terms of Section 55 of HMWS&S Act and Clause 16 of the agreement which incorporates the statutory levy under Section 55 of HMWS&S Act, the learned Single Judge and the Division Bench rightly recorded concurrent findings upholding the levy. Observing that the appellant being occupier of the premises, though not directly connected to the sewer line of the Board, is ultimately letting into the seweragesystem of theBoard after partial treatment at JETL, the High Court was right in holding that the levy of sewerage cess is in accordance with Section 55 of HMWS&S Act. The payment of sewerage surcharges and the other charges by JETL cannot take away the statutory liability of sewerage cess levied on the occupier of the premises who consumes water and lets out the sewage into the Board sewer system. The payment of sewerage surcharge and other charges by JETL to the respondent-Board will not amount to double levy and the High Court rightly dismissed the writ petitions and also the review petitions filed by the appellant. The impugned order does not suffer from any infirmity warranting interference.
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Dolai Molliko & Ors Vs. Krushna Chandra Patnaik & Ors | is not a case where a plaintiff or an appellant applies for bringing the heirs of the deceased defendant or respondent on the record, this is a case where one of the appellants died and his heirs have to be brought on record. In such a case there is no question of any diligent or bona fide enquiry for the deceased appellants heirs must be known to the heirs who applied for being brought on the record. Even so we are of opinion that unless there is fraud or collusion or there are other circumstances which indicate that there has not been a fair or real trial or that against the absent heir there was a special case which was not and could not be tried in the proceeding, there is no reason why the heirs who have applied for being brought on record should not be held to represent the entire estate including the interests of the heirs not brought on the record. This is not to say that where heirs of an appellant are to be brought on record all of them should not be brought on record and any of them should be deliberately left out. But if by oversight or on account of some doubt as to who are the heirs, any heir of a deceased appellant is left out that in itself would be no reason for holding that the entire estate of the deceased is not represented unless circumstances like fraud or collusion to which we have referred above exist. 5. In the present case there is no question of any fraud or collusion, nor is there anything to show that there had not been a fair or real trial, nor can it be said that against the absent heir there was a special case which was not and could not be tried in the proceeding in his absence. It may also be noticed that the respondents themselves did not object in the court of the Subordinate Judge that some of the heirs of deceased Dolai had been left out and the case proceeded there as if the estate of deceased Dolai was represented in full by the heirs brought on record. It was only in the High Court that it was discovered that Dolai had left three other heirs who had not been brought on the record. In the circumstances we are of opinion that the estate of Dolai was fully represented by the heirs who had been brought on the record in the Subordinate Judges court and that these heirs represented the absent heirs also who would be equal1y bound by the result, and there is no reason to hold that the appeal before the Subordinate Judge had abated on that ground. 6. We may in this connection refer to certain cases where a similar view has been taken. In Abdul Rahman v. Shahab-ud-Din ILR (1920) 1 Lah 481: (AIR 1920 Lah 228) the appellant had died and only his sons were brought on the record and not his widow and daughters, though the appellant was a Mohammadan. It was held that as the heirs who had applied for being brought on record as heirs and legal representatives of the deceased appellant bona fide believed that they were the sole heirs and legal representatives of the deceased, the appeal did not abate notwithstanding that in Mohammadan law other persons would be co-heirs of the deceased. 7. In Mohd. Zafaryab Khan v. Abdul Razzac, ILR (1928) 50 All 857: (AIR 1928 All 532 ), it was held that "when by an order which has become final, a certain persons name has been brought on to the record of an appeal as the legal representative of the deceased appellant, it is not open to the respondent to urge that the appeal has abated because some other heirs have been left out". 8. In Ram Charan v. Bansidhar, ILR (1942) All 671: (AIR 1942 All 358), the sole appellant had died leaving two daughters. One of his daughters was brought on record as his legal representative but not the other. It was held that the substitution of one of the daughters as legal representative of the deceased must be deemed to have been for the benefit of the entire inheritance which came into being on his death, and the entire estate was represented by her and there was no abatement of any part of it. 9. In Shanti Devi v. Khodai Prasad Singh, AIR 1942 Pat 340 on the death of the plaintiff in a suit to enforce a mortgage his sons were brought on record but not his widow who had herself filed a petition stating that she was not in possession of the properties of the deceased plaintiff nor did she desire any interest in the family properties it was held that the failure to bring the widow on the record was a mere technical defect and the suit did not abate. 10. In Ishwarlal Laxmichand v. Kuber Mohan, AIR 1943 Bom 457 on the death of the appellant, his son was brought on record as heir on his application and the widow who also was an heir was left out it was held that it was proper that both the son and the widow should have applied for being brought on the record but that the appeal did not abate merely because the widow had not applied as the estate was fully represented by the son. 11. We are of opinion that these cases have been correctly decided and even where the plaintiff or the appellant has died and all his heirs have not been brought on the record because of oversight or because of some doubt as to who are his heirs, the suit or the appeal, as the case may be, does not abate and the heirs brought on the record fully represent the estate unless there are circumstances like fraud or collusion to which we have already referred above. | 1[ds]It will be noticed that there is one difference between the present case and the two cases on which reliance has been placed on behalf of the appellants. This is not a case where a plaintiff or an appellant applies for bringing the heirs of the deceased defendant or respondent on the record, this is a case where one of the appellants died and his heirs have to be brought on record. In such a case there is no question of any diligent or bona fide enquiry for the deceased appellants heirs must be known to the heirs who applied for being brought on the record. Even so we are of opinion that unless there is fraud or collusion or there are other circumstances which indicate that there has not been a fair or real trial or that against the absent heir there was a special case which was not and could not be tried in the proceeding, there is no reason why the heirs who have applied for being brought on record should not be held to represent the entire estate including the interests of the heirs not brought on the record. This is not to say that where heirs of an appellant are to be brought on record all of them should not be brought on record and any of them should be deliberately left out. But if by oversight or on account of some doubt as to who are the heirs, any heir of a deceased appellant is left out that in itself would be no reason for holding that the entire estate of the deceased is not represented unless circumstances like fraud or collusion to which we have referred above exist5. In the present case there is no question of any fraud or collusion, nor is there anything to show that there had not been a fair or real trial, nor can it be said that against the absent heir there was a special case which was not and could not be tried in the proceeding in his absence. It may also be noticed that the respondents themselves did not object in the court of the Subordinate Judge that some of the heirs of deceased Dolai had been left out and the case proceeded there as if the estate of deceased Dolai was represented in full by the heirs brought on record. It was only in the High Court that it was discovered that Dolai had left three other heirs who had not been brought on the record. In the circumstances we are of opinion that the estate of Dolai was fully represented by the heirs who had been brought on the record in the Subordinate Judges court and that these heirs represented the absent heirs also who would be equal1y bound by the result, and there is no reason to hold that the appeal before the Subordinate Judge had abated on that ground11. We are of opinion that these cases have been correctly decided and even where the plaintiff or the appellant has died and all his heirs have not been brought on the record because of oversight or because of some doubt as to who are his heirs, the suit or the appeal, as the case may be, does not abate and the heirs brought on the record fully represent the estate unless there are circumstances like fraud or collusion to which we have already referred above. | 1 | 2,174 | 597 | ### 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:
is not a case where a plaintiff or an appellant applies for bringing the heirs of the deceased defendant or respondent on the record, this is a case where one of the appellants died and his heirs have to be brought on record. In such a case there is no question of any diligent or bona fide enquiry for the deceased appellants heirs must be known to the heirs who applied for being brought on the record. Even so we are of opinion that unless there is fraud or collusion or there are other circumstances which indicate that there has not been a fair or real trial or that against the absent heir there was a special case which was not and could not be tried in the proceeding, there is no reason why the heirs who have applied for being brought on record should not be held to represent the entire estate including the interests of the heirs not brought on the record. This is not to say that where heirs of an appellant are to be brought on record all of them should not be brought on record and any of them should be deliberately left out. But if by oversight or on account of some doubt as to who are the heirs, any heir of a deceased appellant is left out that in itself would be no reason for holding that the entire estate of the deceased is not represented unless circumstances like fraud or collusion to which we have referred above exist. 5. In the present case there is no question of any fraud or collusion, nor is there anything to show that there had not been a fair or real trial, nor can it be said that against the absent heir there was a special case which was not and could not be tried in the proceeding in his absence. It may also be noticed that the respondents themselves did not object in the court of the Subordinate Judge that some of the heirs of deceased Dolai had been left out and the case proceeded there as if the estate of deceased Dolai was represented in full by the heirs brought on record. It was only in the High Court that it was discovered that Dolai had left three other heirs who had not been brought on the record. In the circumstances we are of opinion that the estate of Dolai was fully represented by the heirs who had been brought on the record in the Subordinate Judges court and that these heirs represented the absent heirs also who would be equal1y bound by the result, and there is no reason to hold that the appeal before the Subordinate Judge had abated on that ground. 6. We may in this connection refer to certain cases where a similar view has been taken. In Abdul Rahman v. Shahab-ud-Din ILR (1920) 1 Lah 481: (AIR 1920 Lah 228) the appellant had died and only his sons were brought on the record and not his widow and daughters, though the appellant was a Mohammadan. It was held that as the heirs who had applied for being brought on record as heirs and legal representatives of the deceased appellant bona fide believed that they were the sole heirs and legal representatives of the deceased, the appeal did not abate notwithstanding that in Mohammadan law other persons would be co-heirs of the deceased. 7. In Mohd. Zafaryab Khan v. Abdul Razzac, ILR (1928) 50 All 857: (AIR 1928 All 532 ), it was held that "when by an order which has become final, a certain persons name has been brought on to the record of an appeal as the legal representative of the deceased appellant, it is not open to the respondent to urge that the appeal has abated because some other heirs have been left out". 8. In Ram Charan v. Bansidhar, ILR (1942) All 671: (AIR 1942 All 358), the sole appellant had died leaving two daughters. One of his daughters was brought on record as his legal representative but not the other. It was held that the substitution of one of the daughters as legal representative of the deceased must be deemed to have been for the benefit of the entire inheritance which came into being on his death, and the entire estate was represented by her and there was no abatement of any part of it. 9. In Shanti Devi v. Khodai Prasad Singh, AIR 1942 Pat 340 on the death of the plaintiff in a suit to enforce a mortgage his sons were brought on record but not his widow who had herself filed a petition stating that she was not in possession of the properties of the deceased plaintiff nor did she desire any interest in the family properties it was held that the failure to bring the widow on the record was a mere technical defect and the suit did not abate. 10. In Ishwarlal Laxmichand v. Kuber Mohan, AIR 1943 Bom 457 on the death of the appellant, his son was brought on record as heir on his application and the widow who also was an heir was left out it was held that it was proper that both the son and the widow should have applied for being brought on the record but that the appeal did not abate merely because the widow had not applied as the estate was fully represented by the son. 11. We are of opinion that these cases have been correctly decided and even where the plaintiff or the appellant has died and all his heirs have not been brought on the record because of oversight or because of some doubt as to who are his heirs, the suit or the appeal, as the case may be, does not abate and the heirs brought on the record fully represent the estate unless there are circumstances like fraud or collusion to which we have already referred above.
### Response:
1
### Explanation:
It will be noticed that there is one difference between the present case and the two cases on which reliance has been placed on behalf of the appellants. This is not a case where a plaintiff or an appellant applies for bringing the heirs of the deceased defendant or respondent on the record, this is a case where one of the appellants died and his heirs have to be brought on record. In such a case there is no question of any diligent or bona fide enquiry for the deceased appellants heirs must be known to the heirs who applied for being brought on the record. Even so we are of opinion that unless there is fraud or collusion or there are other circumstances which indicate that there has not been a fair or real trial or that against the absent heir there was a special case which was not and could not be tried in the proceeding, there is no reason why the heirs who have applied for being brought on record should not be held to represent the entire estate including the interests of the heirs not brought on the record. This is not to say that where heirs of an appellant are to be brought on record all of them should not be brought on record and any of them should be deliberately left out. But if by oversight or on account of some doubt as to who are the heirs, any heir of a deceased appellant is left out that in itself would be no reason for holding that the entire estate of the deceased is not represented unless circumstances like fraud or collusion to which we have referred above exist5. In the present case there is no question of any fraud or collusion, nor is there anything to show that there had not been a fair or real trial, nor can it be said that against the absent heir there was a special case which was not and could not be tried in the proceeding in his absence. It may also be noticed that the respondents themselves did not object in the court of the Subordinate Judge that some of the heirs of deceased Dolai had been left out and the case proceeded there as if the estate of deceased Dolai was represented in full by the heirs brought on record. It was only in the High Court that it was discovered that Dolai had left three other heirs who had not been brought on the record. In the circumstances we are of opinion that the estate of Dolai was fully represented by the heirs who had been brought on the record in the Subordinate Judges court and that these heirs represented the absent heirs also who would be equal1y bound by the result, and there is no reason to hold that the appeal before the Subordinate Judge had abated on that ground11. We are of opinion that these cases have been correctly decided and even where the plaintiff or the appellant has died and all his heirs have not been brought on the record because of oversight or because of some doubt as to who are his heirs, the suit or the appeal, as the case may be, does not abate and the heirs brought on the record fully represent the estate unless there are circumstances like fraud or collusion to which we have already referred above.
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