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PRABHAGIYA VAN ADHIKARI AWADH VAN PRABHAG Vs. ARUN KUMAR BHARDWAJ (DEAD) THR. LRS. & ORS
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the Forest Act, there is a prohibition against acquisition of any right over the land comprised in such notification except by way of a contract executed in writing by or on behalf of the Government. Since no such written contract was executed by or on behalf of the State or on behalf of the person in whom such right was vested, therefore, the Gaon Sabha was not competent to grant lease in favour of the appellant. 25. In a judgment reported as State of Uttarakhand and Ors. v. Kumaon Stone Crusher (2018) 14 SCC 537, an argument was raised that since notification under Section 20 of the Forest Act has not been published therefore, land covered by notification issued under Section 4 cannot be regarded as forest. This Court negated the argument relying upon Section 5 of the Forest Act as amended in State of Uttar Pradesh by U.P. Act No. 23 of 1965. It was held that regulation by the State comes into operation after the issue of notification under Section 4 of the Forest Act and that absence of notification under Section 20 of the Forest Act cannot be accepted. The Court held as under: 145. At this juncture, it is also necessary to notice one submission raised by the learned counsel for the petitioners. It is contended that the State of Uttar Pradesh although issued notification under Section 4 of the 1927 Act proposing to constitute a land as forest but no final notification having been issued under Section 20 of the 1927 Act the land covered by a notification issued under Section 4 cannot be regarded as forest so as to levy transit fee on the forest produce transiting through that area. With reference to the above submission, it is sufficient to notice Section 5 as inserted by Uttar Pradesh Act 23 of 1965 with effect from 25-11-1965. By the aforesaid U.P. Act 23 of 1965 Section 5 has been substituted to the following effect: 5. Bar of accrual of forest rights.—After the issue of the notification under Section 4 no right shall be acquired in or over the land comprised in such notification, except by succession or under a grant or a contract in writing made or entered into by or on behalf of the Government or some person in whom such right was vested when the notification was issued; and no fresh clearings for cultivation or for any other purpose shall be made in such land, nor any tree therein felled, girdled, lopped, tapped, or burnt, or its bark or leaves stripped off, or the same otherwise damaged, nor any forest produce removed therefrom, except in accordance with such rules as may be made by the State Government in this behalf. 146. Section 5 clearly provides that after the issue of the notification under Section 4 no forest produce can be removed therefrom, except in accordance with such rules as may be made by the State Government in this behalf. The regulation by the State thus comes into operation after the issue of notification under Section 4 and thus the submission of the petitioners that since no final notification under Section 20 has been issued they cannot be regulated by the 1978 Rules cannot be accepted. 26. This Court in a judgment reported as Prahlad Pradhan and Ors. v. Sonu Kumhar and Ors. (2019) 10 SCC 259 negated argument of ownership based upon entries in the revenue records. It was held that the revenue record does not confer title to the property nor do they have any presumptive value on the title. The Court held as under: 5. The contention raised by the appellants is that since Mangal Kumhar was the recorded tenant in the suit property as per the Survey Settlement of 1964, the suit property was his self-acquired property. The said contention is legally misconceived since entries in the revenue records do not confer title to a property, nor do they have any presumptive value on the title. They only enable the person in whose favour mutation is recorded, to pay the land revenue in respect of the land in question. As a consequence, merely because Mangal Kumhars name was recorded in the Survey Settlement of 1964 as a recorded tenant in the suit property, it would not make him the sole and exclusive owner of the suit property. 27. The six yearly khatauni for the fasli year 1395 to 1400 is to the effect that the land stands transferred according to the Forest Act as the reserved forest. Such revenue record is in respect of Khasra No. 1576. It is only in the revenue record for the period 1394 fasli to 1395 fasli, name of the lessees find mention but without any basis. The revenue record is not a document of title. Therefore, even if the name of the lessee finds mention in the revenue record but such entry without any supporting documents of creation of lease contemplated under the Forest Act is inconsequential and does not create any right, title or interest over 12 bighas of land claimed to be in possession of the lessee as a lessee of the Gaon Sabha. 28. The High Court had referred to the objections filed by the lessees under the Consolidation Act and also objections by the Forest Department. It was held by the High Court that since no objections were filed by the Forest Department earlier, therefore, the objections would be barred by Section 49 of the Consolidation Act. We find that such finding recorded by the High Court is clearly erroneous. The land vests in the Forest Department by virtue of notification published under a statute. It was the lessee who had to assert the title on the forest land by virtue of an agreement in writing by a competent authority but no such agreement in writing has been produced. Therefore, the lessee would not be entitled to any right only on the basis of an entry in the revenue record.
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1[ds]22. We do not find any merit in the argument raised by Mr. Khan and Mr. Hooda. In the notification published on 23.11.1955, there was a declaration that land measuring 162 acres shall constitute forest land. Explanation (1) to Section 4 of the Forest Act clarifies that it would be sufficient to describe the limits of the forest by roads, rivers, ridges or other well-known or readily intelligible boundaries. The notification dated 23.11.1955 has the boundaries on all four sides mentioned therein. There is no other requirement under Section 4 of the Forest Act. It is only Section 6 of the Forest Act which needs to specify the situation and limits of the proposed forest. In terms of such clause (a) of Section 6 of the Forest Act, the details of khasra numbers which were part of 162 acres find mention in the proclamation so published. Therefore, the statutory procedural requirements stand satisfied.State of U.P. v. Dy. Director of Consolidation & Ors. (1996) 5 SCC 194 wherein the land was notified as a reserved forest under Section 20 of the Forest Act but the respondents in appeal before this Court claimed that they were in possession of the land and had acquired Sirdari rights.This Court held that in terms of the Abolition Act, the State was the proprietor of the land and the respondents, even if they were Sirdars, would still be tenure- holders. It was also held that the Consolidation Authorities have no jurisdiction to go behind the notification under Section 20 of the Forest Act. The Court held as under:7. It is thus obvious that a person who was holding the land as Sirdar was not vested with proprietary rights under the Abolition Act. He was a tenure-holder and the proprietary rights vested with the State. The High Court, therefore, fell into patent error in assuming that by virtue of their status as Sirdars the respondents were proprietors of the land. The State being the proprietor of the land under the Abolition Act, it was justified in issuing the notification under Section 4 of the Act.xx xx xx10. It is thus obvious that the Forest Settlement Officer has the powers of a civil court and his order is subject to appeal and finally revision before the State Government. The Act is a complete code in itself and contains elaborate procedure for declaring and notifying a reserve forest. Once a notification under Section 20 of the Act declaring a land as reserve forest is published, then all the rights in the said land claimed by any person come to an end and are no longer available. The notification is binding on the consolidation authorities in the same way as a decree of a civil court. The respondents could very well file objections and claims including objection regarding the nature of the land before the Forest Settlement Officer. They did not file any objection or claim before the authorities in the proceedings under the Act. After the notification under Section 20 of the Act, the respondents could not have raised any objections qua the said notification before the consolidation authorities. The consolidation authorities were bound by the notification which had achieved finality.A reading of Section 20 of the Forest Act does not show that for a reserved forest, there is a requirement of publication of notification but no time limit is prescribed for publication of such notification under Section 20. Therefore, even if notification under Section 20 of the Forest Act has not been issued, by virtue of Section 5 of the Forest Act, there is a prohibition against acquisition of any right over the land comprised in such notification except by way of a contract executed in writing by or on behalf of the Government. Since no such written contract was executed by or on behalf of the State or on behalf of the person in whom such right was vested, therefore, the Gaon Sabha was not competent to grant lease in favour of the appellant.25. In a judgment reported as State of Uttarakhand and Ors. v. Kumaon Stone Crusher (2018) 14 SCC 537, an argument was raised that since notification under Section 20 of the Forest Act has not been published therefore, land covered by notification issued under Section 4 cannot be regarded as forest. This Court negated the argument relying upon Section 5 of the Forest Act as amended in State of Uttar Pradesh by U.P. Act No. 23 of 1965. It was held that regulation by the State comes into operation after the issue of notification under Section 4 of the Forest Act and that absence of notification under Section 20 of the Forest Act cannot be accepted. The Court held as under:145. At this juncture, it is also necessary to notice one submission raised by the learned counsel for the petitioners. It is contended that the State of Uttar Pradesh although issued notification under Section 4 of the 1927 Act proposing to constitute a land as forest but no final notification having been issued under Section 20 of the 1927 Act the land covered by a notification issued under Section 4 cannot be regarded as forest so as to levy transit fee on the forest produce transiting through that area. With reference to the above submission, it is sufficient to notice Section 5 as inserted by Uttar Pradesh Act 23 of 1965 with effect from 25-11-1965. By the aforesaid U.P. Act 23 of 1965 Section 5 has been substituted to the following effect:5. Bar of accrual of forest rights.—After the issue of the notification under Section 4 no right shall be acquired in or over the land comprised in such notification, except by succession or under a grant or a contract in writing made or entered into by or on behalf of the Government or some person in whom such right was vested when the notification was issued; and no fresh clearings for cultivation or for any other purpose shall be made in such land, nor any tree therein felled, girdled, lopped, tapped, or burnt, or its bark or leaves stripped off, or the same otherwise damaged, nor any forest produce removed therefrom, except in accordance with such rules as may be made by the State Government in this behalf.146. Section 5 clearly provides that after the issue of the notification under Section 4 no forest produce can be removed therefrom, except in accordance with such rules as may be made by the State Government in this behalf. The regulation by the State thus comes into operation after the issue of notification under Section 4 and thus the submission of the petitioners that since no final notification under Section 20 has been issued they cannot be regulated by the 1978 Rules cannot be accepted.27. The six yearly khatauni for the fasli year 1395 to 1400 is to the effect that the land stands transferred according to the Forest Act as the reserved forest. Such revenue record is in respect of Khasra No. 1576. It is only in the revenue record for the period 1394 fasli to 1395 fasli, name of the lessees find mention but without any basis. The revenue record is not a document of title. Therefore, even if the name of the lessee finds mention in the revenue record but such entry without any supporting documents of creation of lease contemplated under the Forest Act is inconsequential and does not create any right, title or interest overbighas of land claimed to be in possession of the lessee as a lessee of the Gaon Sabha.28. The High Court had referred to the objections filed by the lessees under the Consolidation Act and also objections by the Forest Department. It was held by the High Court that since no objections were filed by the Forest Department earlier, therefore, the objections would be barred by Section 49 of the Consolidation Act. We find that such finding recorded by the High Court is clearly erroneous. The land vests in the Forest Department by virtue of notification published under a statute. It was the lessee who had to assert the title on the forest land by virtue of an agreement in writing by a competent authority but no such agreement in writing has been produced. Therefore, the lessee would not be entitled to any right only on the basis of an entry in the revenue record.
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the Forest Act, there is a prohibition against acquisition of any right over the land comprised in such notification except by way of a contract executed in writing by or on behalf of the Government. Since no such written contract was executed by or on behalf of the State or on behalf of the person in whom such right was vested, therefore, the Gaon Sabha was not competent to grant lease in favour of the appellant. 25. In a judgment reported as State of Uttarakhand and Ors. v. Kumaon Stone Crusher (2018) 14 SCC 537, an argument was raised that since notification under Section 20 of the Forest Act has not been published therefore, land covered by notification issued under Section 4 cannot be regarded as forest. This Court negated the argument relying upon Section 5 of the Forest Act as amended in State of Uttar Pradesh by U.P. Act No. 23 of 1965. It was held that regulation by the State comes into operation after the issue of notification under Section 4 of the Forest Act and that absence of notification under Section 20 of the Forest Act cannot be accepted. The Court held as under: 145. At this juncture, it is also necessary to notice one submission raised by the learned counsel for the petitioners. It is contended that the State of Uttar Pradesh although issued notification under Section 4 of the 1927 Act proposing to constitute a land as forest but no final notification having been issued under Section 20 of the 1927 Act the land covered by a notification issued under Section 4 cannot be regarded as forest so as to levy transit fee on the forest produce transiting through that area. With reference to the above submission, it is sufficient to notice Section 5 as inserted by Uttar Pradesh Act 23 of 1965 with effect from 25-11-1965. By the aforesaid U.P. Act 23 of 1965 Section 5 has been substituted to the following effect: 5. Bar of accrual of forest rights.—After the issue of the notification under Section 4 no right shall be acquired in or over the land comprised in such notification, except by succession or under a grant or a contract in writing made or entered into by or on behalf of the Government or some person in whom such right was vested when the notification was issued; and no fresh clearings for cultivation or for any other purpose shall be made in such land, nor any tree therein felled, girdled, lopped, tapped, or burnt, or its bark or leaves stripped off, or the same otherwise damaged, nor any forest produce removed therefrom, except in accordance with such rules as may be made by the State Government in this behalf. 146. Section 5 clearly provides that after the issue of the notification under Section 4 no forest produce can be removed therefrom, except in accordance with such rules as may be made by the State Government in this behalf. The regulation by the State thus comes into operation after the issue of notification under Section 4 and thus the submission of the petitioners that since no final notification under Section 20 has been issued they cannot be regulated by the 1978 Rules cannot be accepted. 26. This Court in a judgment reported as Prahlad Pradhan and Ors. v. Sonu Kumhar and Ors. (2019) 10 SCC 259 negated argument of ownership based upon entries in the revenue records. It was held that the revenue record does not confer title to the property nor do they have any presumptive value on the title. The Court held as under: 5. The contention raised by the appellants is that since Mangal Kumhar was the recorded tenant in the suit property as per the Survey Settlement of 1964, the suit property was his self-acquired property. The said contention is legally misconceived since entries in the revenue records do not confer title to a property, nor do they have any presumptive value on the title. They only enable the person in whose favour mutation is recorded, to pay the land revenue in respect of the land in question. As a consequence, merely because Mangal Kumhars name was recorded in the Survey Settlement of 1964 as a recorded tenant in the suit property, it would not make him the sole and exclusive owner of the suit property. 27. The six yearly khatauni for the fasli year 1395 to 1400 is to the effect that the land stands transferred according to the Forest Act as the reserved forest. Such revenue record is in respect of Khasra No. 1576. It is only in the revenue record for the period 1394 fasli to 1395 fasli, name of the lessees find mention but without any basis. The revenue record is not a document of title. Therefore, even if the name of the lessee finds mention in the revenue record but such entry without any supporting documents of creation of lease contemplated under the Forest Act is inconsequential and does not create any right, title or interest over 12 bighas of land claimed to be in possession of the lessee as a lessee of the Gaon Sabha. 28. The High Court had referred to the objections filed by the lessees under the Consolidation Act and also objections by the Forest Department. It was held by the High Court that since no objections were filed by the Forest Department earlier, therefore, the objections would be barred by Section 49 of the Consolidation Act. We find that such finding recorded by the High Court is clearly erroneous. The land vests in the Forest Department by virtue of notification published under a statute. It was the lessee who had to assert the title on the forest land by virtue of an agreement in writing by a competent authority but no such agreement in writing has been produced. Therefore, the lessee would not be entitled to any right only on the basis of an entry in the revenue record.
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### Explanation:
Once a notification under Section 20 of the Act declaring a land as reserve forest is published, then all the rights in the said land claimed by any person come to an end and are no longer available. The notification is binding on the consolidation authorities in the same way as a decree of a civil court. The respondents could very well file objections and claims including objection regarding the nature of the land before the Forest Settlement Officer. They did not file any objection or claim before the authorities in the proceedings under the Act. After the notification under Section 20 of the Act, the respondents could not have raised any objections qua the said notification before the consolidation authorities. The consolidation authorities were bound by the notification which had achieved finality.A reading of Section 20 of the Forest Act does not show that for a reserved forest, there is a requirement of publication of notification but no time limit is prescribed for publication of such notification under Section 20. Therefore, even if notification under Section 20 of the Forest Act has not been issued, by virtue of Section 5 of the Forest Act, there is a prohibition against acquisition of any right over the land comprised in such notification except by way of a contract executed in writing by or on behalf of the Government. Since no such written contract was executed by or on behalf of the State or on behalf of the person in whom such right was vested, therefore, the Gaon Sabha was not competent to grant lease in favour of the appellant.25. In a judgment reported as State of Uttarakhand and Ors. v. Kumaon Stone Crusher (2018) 14 SCC 537, an argument was raised that since notification under Section 20 of the Forest Act has not been published therefore, land covered by notification issued under Section 4 cannot be regarded as forest. This Court negated the argument relying upon Section 5 of the Forest Act as amended in State of Uttar Pradesh by U.P. Act No. 23 of 1965. It was held that regulation by the State comes into operation after the issue of notification under Section 4 of the Forest Act and that absence of notification under Section 20 of the Forest Act cannot be accepted. The Court held as under:145. At this juncture, it is also necessary to notice one submission raised by the learned counsel for the petitioners. It is contended that the State of Uttar Pradesh although issued notification under Section 4 of the 1927 Act proposing to constitute a land as forest but no final notification having been issued under Section 20 of the 1927 Act the land covered by a notification issued under Section 4 cannot be regarded as forest so as to levy transit fee on the forest produce transiting through that area. With reference to the above submission, it is sufficient to notice Section 5 as inserted by Uttar Pradesh Act 23 of 1965 with effect from 25-11-1965. By the aforesaid U.P. Act 23 of 1965 Section 5 has been substituted to the following effect:5. Bar of accrual of forest rights.—After the issue of the notification under Section 4 no right shall be acquired in or over the land comprised in such notification, except by succession or under a grant or a contract in writing made or entered into by or on behalf of the Government or some person in whom such right was vested when the notification was issued; and no fresh clearings for cultivation or for any other purpose shall be made in such land, nor any tree therein felled, girdled, lopped, tapped, or burnt, or its bark or leaves stripped off, or the same otherwise damaged, nor any forest produce removed therefrom, except in accordance with such rules as may be made by the State Government in this behalf.146. Section 5 clearly provides that after the issue of the notification under Section 4 no forest produce can be removed therefrom, except in accordance with such rules as may be made by the State Government in this behalf. The regulation by the State thus comes into operation after the issue of notification under Section 4 and thus the submission of the petitioners that since no final notification under Section 20 has been issued they cannot be regulated by the 1978 Rules cannot be accepted.27. The six yearly khatauni for the fasli year 1395 to 1400 is to the effect that the land stands transferred according to the Forest Act as the reserved forest. Such revenue record is in respect of Khasra No. 1576. It is only in the revenue record for the period 1394 fasli to 1395 fasli, name of the lessees find mention but without any basis. The revenue record is not a document of title. Therefore, even if the name of the lessee finds mention in the revenue record but such entry without any supporting documents of creation of lease contemplated under the Forest Act is inconsequential and does not create any right, title or interest overbighas of land claimed to be in possession of the lessee as a lessee of the Gaon Sabha.28. The High Court had referred to the objections filed by the lessees under the Consolidation Act and also objections by the Forest Department. It was held by the High Court that since no objections were filed by the Forest Department earlier, therefore, the objections would be barred by Section 49 of the Consolidation Act. We find that such finding recorded by the High Court is clearly erroneous. The land vests in the Forest Department by virtue of notification published under a statute. It was the lessee who had to assert the title on the forest land by virtue of an agreement in writing by a competent authority but no such agreement in writing has been produced. Therefore, the lessee would not be entitled to any right only on the basis of an entry in the revenue record.
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B. Venkataramana Vs. State Of Tamil Nadu & Anr
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the Bar. It was further notified that the selection of the candidates would be made from various castes, religions and communities in pursuance of the rules prescribed in what are popularly described as Communal G. Os., namely, for Harijans 19, Muslims 6, Christians 6, Backward Hindus 10, Non-Brahmin Hindus 32 and Brahmins 11, Different and unequal age limits for candidates of the above mentioned different classes were fixed and no age limit was fixed for Harijan and Backward Hindus. 3. The petnr. is a Graduate having secured a first class degree in Mathematics. He also passed the B.L. Degree Examination in the second class. He has been practising as an Advocate in Nellore for over seven years. Admittedly, therefore, he possesses the requisite qualifications for being selected as a District Munsif. Indeed, it is admitted that the marks secured by him would entitle him to be selected if the provisions in the Communal G. O. were disregarded. In April and May, 1950, the Madras Public Services Commission interviewed the candidates. It is claimed by the petnr. that he did well in the viva voce examination held by the Public Services Commission in which one of the Judges of the Madras H. C. was also present as a representative of the H. C. Out of the 83 posts,12 were selected from the Madras Judicial Dept. The Madras Public Services Commission in its not fn. in the Supplement to Part I-B to the Fort St. Gorge Gazette dated 6-6-1950 published the list of selected candidates under each community: Harijan 1, Muslims 7, Christians 4, Backward Hindus 13, Non-Brahmin Hindus 32 and Brahmins 4. The present Petn. was filed on 21-10-1950 praying for an order declaring that the rule of the communal rotation, in pursuance of which the selection to the posts of District Munsifs was made in the Madras Subordinate Civil Judicial Service, was repugnant to the provisions of the Constitution and therefore, void, for directing the Madras Public Services Commission to cancel the selections already made, prohibiting the State of Madras from filling up the posts from out of the candidates selected in pursuance of the notfn. dated 16-12-1949 and for drawing the disposal of the petnrs. appln. for the said post after taking it on the file on its merits and without applying the rule of communal rotation. 5. The Constitution by Art. 16 specifically provides or equality of opportunity in matters of public employment. The relevant clauses are as follows "(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. (2) No citizen shall, on grounds only of religion race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of any employment or office under the State. (4) Nothing in his article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State." Cl. (4) expressly permits the State to make provision for the reservation of appointments of posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services of the state. Reservation of posts in favour of any backward class of citizens cannot, therefore, he regarded as unconstitutional. The Communal. G.O. itself makes an express reservation of seats for Harijans and Backward Hindus. The other categories, namely, Muslims, Christians, Non-Brahmin Hindus and Brahmins must be taken to have been treated as other than Harijans and Backward Hindus. Our attention was drawn to a schedule of Backward Classes set out in sch. III to part I of the Madras Provincial and Subordinate Service Rules. It was, therefore, argued that Backward Hindus would mean Hindus of any of the communities mentioned in that Schedule. It is, in the circumstances, impossible to say that classes of people other than Harijans and Backward Hindus can be called Backward Classes, As regards the posts reserved for Harijans and Backward Hindus it may be said that the petnr. who does not belong to those two classes is regarded us ineligible for those reserved posts not on the ground of religion, race, caste, etc. but because of the necessity for making a provision for reservation of such posts in favour of a backward class of citizens, but the ineligibility of the petnr. for any of the posts reserved for communities other than Harijans and Backward Hindus cannot but be regarded as founded on the ground only of his being a Brahmin. For instance, the petnr. may be far better qualified than a Muslim or a Christian or a Non-Brahmin candidate and if all the posts reserved for those communities were open to him, he would he eligible for appointment, as is conceded by the learned Advocate-General of Madras, but, nevertheless, he cannot expect to get any of those posts reserved for those different categories only because he happens to be a Brahmin. His ineligibility for any of the posts reserved for the other communities, although he may have far better qualifications than those possessed by members falling within those categories, is brought about only because he is a Brahmin and does not belong to any of those categories. This ineligibility created by the Communal G. O. does not appear to us to be sanctioned by cl. (4) of Arts, 16 and is 13 an infringement of the fundamental right guaranteed to the petnr. as an individual citizen under Art, 16 (1) and (2). The Communal G. O., in our opinion, is repugnant to the provisions of Art. 16 and is as such void and illegal. This, in our opinion, is sufficient to dispose of this appln. and we do not consider it necessary to consider the effect at Art. 14 or 15 of the Constitution on the case of the resps.
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1[ds]Cl. (4) expressly permits the State to make provision for the reservation of appointments of posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services of the state. Reservation of posts in favour of any backward class of citizens cannot, therefore, he regarded as unconstitutional. The Communal. G.O. itself makes an express reservation of seats for Harijans and Backward Hindus. The other categories, namely, Muslims, Christians,n Hindus and Brahmins must be taken to have been treated as other than Harijans and Backward Hindus. Our attention was drawn to a schedule of Backward Classes set out in sch. III to part I of the Madras Provincial and Subordinate Service Rules. It was, therefore, argued that Backward Hindus would mean Hindus of any of the communities mentioned in that Schedule. It is, in the circumstances, impossible to say that classes of people other than Harijans and Backward Hindus can be called Backward Classes, As regards the posts reserved for Harijans and Backward Hindus it may be said that the petnr. who does not belong to those two classes is regarded us ineligible for those reserved posts not on the ground of religion, race, caste, etc. but because of the necessity for making a provision for reservation of such posts in favour of a backward class of citizens, but the ineligibility of the petnr. for any of the posts reserved for communities other than Harijans and Backward Hindus cannot but be regarded as founded on the ground only of his being a Brahmin. For instance, the petnr. may be far better qualified than a Muslim or a Christian or an candidate and if all the posts reserved for those communities were open to him, he would he eligible for appointment, as is conceded by the learnedl of Madras, but, nevertheless, he cannot expect to get any of those posts reserved for those different categories only because he happens to be a Brahmin. His ineligibility for any of the posts reserved for the other communities, although he may have far better qualifications than those possessed by members falling within those categories, is brought about only because he is a Brahmin and does not belong to any of those categories. This ineligibility created by the Communal G. O. does not appear to us to be sanctioned by cl. (4) of Arts, 16 and is 13 an infringement of the fundamental right guaranteed to the petnr. as an individual citizen under Art, 16 (1) and (2). The Communal G. O., in our opinion, is repugnant to the provisions of Art. 16 and is as such void and illegal. This, in our opinion, is sufficient to dispose of this appln. and we do not consider it necessary to consider the effect at Art. 14 or 15 of the Constitution on the case of the resps.
| 1 | 1,280 | 553 |
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the Bar. It was further notified that the selection of the candidates would be made from various castes, religions and communities in pursuance of the rules prescribed in what are popularly described as Communal G. Os., namely, for Harijans 19, Muslims 6, Christians 6, Backward Hindus 10, Non-Brahmin Hindus 32 and Brahmins 11, Different and unequal age limits for candidates of the above mentioned different classes were fixed and no age limit was fixed for Harijan and Backward Hindus. 3. The petnr. is a Graduate having secured a first class degree in Mathematics. He also passed the B.L. Degree Examination in the second class. He has been practising as an Advocate in Nellore for over seven years. Admittedly, therefore, he possesses the requisite qualifications for being selected as a District Munsif. Indeed, it is admitted that the marks secured by him would entitle him to be selected if the provisions in the Communal G. O. were disregarded. In April and May, 1950, the Madras Public Services Commission interviewed the candidates. It is claimed by the petnr. that he did well in the viva voce examination held by the Public Services Commission in which one of the Judges of the Madras H. C. was also present as a representative of the H. C. Out of the 83 posts,12 were selected from the Madras Judicial Dept. The Madras Public Services Commission in its not fn. in the Supplement to Part I-B to the Fort St. Gorge Gazette dated 6-6-1950 published the list of selected candidates under each community: Harijan 1, Muslims 7, Christians 4, Backward Hindus 13, Non-Brahmin Hindus 32 and Brahmins 4. The present Petn. was filed on 21-10-1950 praying for an order declaring that the rule of the communal rotation, in pursuance of which the selection to the posts of District Munsifs was made in the Madras Subordinate Civil Judicial Service, was repugnant to the provisions of the Constitution and therefore, void, for directing the Madras Public Services Commission to cancel the selections already made, prohibiting the State of Madras from filling up the posts from out of the candidates selected in pursuance of the notfn. dated 16-12-1949 and for drawing the disposal of the petnrs. appln. for the said post after taking it on the file on its merits and without applying the rule of communal rotation. 5. The Constitution by Art. 16 specifically provides or equality of opportunity in matters of public employment. The relevant clauses are as follows "(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. (2) No citizen shall, on grounds only of religion race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of any employment or office under the State. (4) Nothing in his article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State." Cl. (4) expressly permits the State to make provision for the reservation of appointments of posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services of the state. Reservation of posts in favour of any backward class of citizens cannot, therefore, he regarded as unconstitutional. The Communal. G.O. itself makes an express reservation of seats for Harijans and Backward Hindus. The other categories, namely, Muslims, Christians, Non-Brahmin Hindus and Brahmins must be taken to have been treated as other than Harijans and Backward Hindus. Our attention was drawn to a schedule of Backward Classes set out in sch. III to part I of the Madras Provincial and Subordinate Service Rules. It was, therefore, argued that Backward Hindus would mean Hindus of any of the communities mentioned in that Schedule. It is, in the circumstances, impossible to say that classes of people other than Harijans and Backward Hindus can be called Backward Classes, As regards the posts reserved for Harijans and Backward Hindus it may be said that the petnr. who does not belong to those two classes is regarded us ineligible for those reserved posts not on the ground of religion, race, caste, etc. but because of the necessity for making a provision for reservation of such posts in favour of a backward class of citizens, but the ineligibility of the petnr. for any of the posts reserved for communities other than Harijans and Backward Hindus cannot but be regarded as founded on the ground only of his being a Brahmin. For instance, the petnr. may be far better qualified than a Muslim or a Christian or a Non-Brahmin candidate and if all the posts reserved for those communities were open to him, he would he eligible for appointment, as is conceded by the learned Advocate-General of Madras, but, nevertheless, he cannot expect to get any of those posts reserved for those different categories only because he happens to be a Brahmin. His ineligibility for any of the posts reserved for the other communities, although he may have far better qualifications than those possessed by members falling within those categories, is brought about only because he is a Brahmin and does not belong to any of those categories. This ineligibility created by the Communal G. O. does not appear to us to be sanctioned by cl. (4) of Arts, 16 and is 13 an infringement of the fundamental right guaranteed to the petnr. as an individual citizen under Art, 16 (1) and (2). The Communal G. O., in our opinion, is repugnant to the provisions of Art. 16 and is as such void and illegal. This, in our opinion, is sufficient to dispose of this appln. and we do not consider it necessary to consider the effect at Art. 14 or 15 of the Constitution on the case of the resps.
### Response:
1
### Explanation:
Cl. (4) expressly permits the State to make provision for the reservation of appointments of posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services of the state. Reservation of posts in favour of any backward class of citizens cannot, therefore, he regarded as unconstitutional. The Communal. G.O. itself makes an express reservation of seats for Harijans and Backward Hindus. The other categories, namely, Muslims, Christians,n Hindus and Brahmins must be taken to have been treated as other than Harijans and Backward Hindus. Our attention was drawn to a schedule of Backward Classes set out in sch. III to part I of the Madras Provincial and Subordinate Service Rules. It was, therefore, argued that Backward Hindus would mean Hindus of any of the communities mentioned in that Schedule. It is, in the circumstances, impossible to say that classes of people other than Harijans and Backward Hindus can be called Backward Classes, As regards the posts reserved for Harijans and Backward Hindus it may be said that the petnr. who does not belong to those two classes is regarded us ineligible for those reserved posts not on the ground of religion, race, caste, etc. but because of the necessity for making a provision for reservation of such posts in favour of a backward class of citizens, but the ineligibility of the petnr. for any of the posts reserved for communities other than Harijans and Backward Hindus cannot but be regarded as founded on the ground only of his being a Brahmin. For instance, the petnr. may be far better qualified than a Muslim or a Christian or an candidate and if all the posts reserved for those communities were open to him, he would he eligible for appointment, as is conceded by the learnedl of Madras, but, nevertheless, he cannot expect to get any of those posts reserved for those different categories only because he happens to be a Brahmin. His ineligibility for any of the posts reserved for the other communities, although he may have far better qualifications than those possessed by members falling within those categories, is brought about only because he is a Brahmin and does not belong to any of those categories. This ineligibility created by the Communal G. O. does not appear to us to be sanctioned by cl. (4) of Arts, 16 and is 13 an infringement of the fundamental right guaranteed to the petnr. as an individual citizen under Art, 16 (1) and (2). The Communal G. O., in our opinion, is repugnant to the provisions of Art. 16 and is as such void and illegal. This, in our opinion, is sufficient to dispose of this appln. and we do not consider it necessary to consider the effect at Art. 14 or 15 of the Constitution on the case of the resps.
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Tara Chand Vs. State of Rajasthan and Others
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FAZAL ALI J. 1. This writ petition by Tara Chand, a brother of the detenu, Hira Nand, has been filed against an order of detention dated June 30, 1979, passed by the Govt. of Rajasthan under the provisions of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act (hereinafter called the " Cofeposa "). The detenu was arrested on July 19, 1979, and on the same day, he was served with the grounds of detention in which there was no indication, although there should have been, that the detenu was entitled to make a representation to the detaining authority. However, Smt. Nita, the wife of the detenu, made two representations dated July 26, 1979, and July 31, 1979, to the State Govt. but the same were rejected on or before the 30th August, 1979. The counsel appearing for the petitioner has not made any grievance regarding the rejection of these two representations by the State Govt. It appears, however, that on the 6th December, 1979, another representation was sent by Smt. Nita to the Home Minister of Rajasthan, the President of India, the Prime Minister of India and the Finance Minister of the Union Govt. praying that the order of detention should be revoked. From a letter sent to the detenu from the Presidents Secretariat on October 9, 1979, it appears that the President had received his representation before October 9, 1979, and the same had been forwarded to the Finance Ministry of the Union Govt. for necessary action. It is common ground that neither the representation was considered by the Union of India nor was any order passed by it. A general plea was taken by Mr. Abdul Khadar that probably the Union of India did not receive this representation at all which, however, is clearly falsified by the letter sent by the President of India, which we have referred to above. In the counter-affidavit filed by the Govt. of India also a very vague and evasive stand appears to have been taken. It is not said that any orders were passed on the representation or that it was considered but it is said that it was to abide by any stand taken by the State Govt. Section 11 (1) of the Cofeposa Act clearly enjoins that the Central Govt. may revoke or modify an order passed by the State Govt. Mr. Abdul Khadar fairly conceded that the Central Govt. had a discretion under s. 11 of the Cofeposa Act to revoke the order of detention. Thus, when once a representation is made to the Central Govt. it is duty bound to consider the same in order to exercise its discretion either in rejecting or accepting it. If there is inordinate delay in considering the representation that would clearly amount to a violation of the provisions of art. 22(5) so as to render the detention unconstitutional and void.
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1[ds]It is common ground that neither the representation was considered by the Union of India nor was any order passed by it. A general plea was taken by Mr. Abdul Khadar that probably the Union of India did not receive this representation at all which, however, is clearly falsified by the letter sent by the President of India, which we have referred to aboveIt is not said that any orders were passed on the representation or that it was considered but it is said that it was to abide by any stand taken by the State Govt. Section 11 (1) of the Cofeposa Act clearly enjoins that the Central Govt. may revoke or modify an order passed by the State Govt. Mr. Abdul Khadar fairly conceded that the Central Govt. had a discretion under s. 11 of the Cofeposa Act to revoke the order of detention. Thus, when once a representation is made to the Central Govt. it is duty bound to consider the same in order to exercise its discretion either in rejecting or accepting it. If there is inordinate delay in considering the representation that would clearly amount to a violation of the provisions of art. 22(5) so as to render the detention unconstitutional and void.
| 1 | 547 | 231 |
### 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:
FAZAL ALI J. 1. This writ petition by Tara Chand, a brother of the detenu, Hira Nand, has been filed against an order of detention dated June 30, 1979, passed by the Govt. of Rajasthan under the provisions of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act (hereinafter called the " Cofeposa "). The detenu was arrested on July 19, 1979, and on the same day, he was served with the grounds of detention in which there was no indication, although there should have been, that the detenu was entitled to make a representation to the detaining authority. However, Smt. Nita, the wife of the detenu, made two representations dated July 26, 1979, and July 31, 1979, to the State Govt. but the same were rejected on or before the 30th August, 1979. The counsel appearing for the petitioner has not made any grievance regarding the rejection of these two representations by the State Govt. It appears, however, that on the 6th December, 1979, another representation was sent by Smt. Nita to the Home Minister of Rajasthan, the President of India, the Prime Minister of India and the Finance Minister of the Union Govt. praying that the order of detention should be revoked. From a letter sent to the detenu from the Presidents Secretariat on October 9, 1979, it appears that the President had received his representation before October 9, 1979, and the same had been forwarded to the Finance Ministry of the Union Govt. for necessary action. It is common ground that neither the representation was considered by the Union of India nor was any order passed by it. A general plea was taken by Mr. Abdul Khadar that probably the Union of India did not receive this representation at all which, however, is clearly falsified by the letter sent by the President of India, which we have referred to above. In the counter-affidavit filed by the Govt. of India also a very vague and evasive stand appears to have been taken. It is not said that any orders were passed on the representation or that it was considered but it is said that it was to abide by any stand taken by the State Govt. Section 11 (1) of the Cofeposa Act clearly enjoins that the Central Govt. may revoke or modify an order passed by the State Govt. Mr. Abdul Khadar fairly conceded that the Central Govt. had a discretion under s. 11 of the Cofeposa Act to revoke the order of detention. Thus, when once a representation is made to the Central Govt. it is duty bound to consider the same in order to exercise its discretion either in rejecting or accepting it. If there is inordinate delay in considering the representation that would clearly amount to a violation of the provisions of art. 22(5) so as to render the detention unconstitutional and void.
### Response:
1
### Explanation:
It is common ground that neither the representation was considered by the Union of India nor was any order passed by it. A general plea was taken by Mr. Abdul Khadar that probably the Union of India did not receive this representation at all which, however, is clearly falsified by the letter sent by the President of India, which we have referred to aboveIt is not said that any orders were passed on the representation or that it was considered but it is said that it was to abide by any stand taken by the State Govt. Section 11 (1) of the Cofeposa Act clearly enjoins that the Central Govt. may revoke or modify an order passed by the State Govt. Mr. Abdul Khadar fairly conceded that the Central Govt. had a discretion under s. 11 of the Cofeposa Act to revoke the order of detention. Thus, when once a representation is made to the Central Govt. it is duty bound to consider the same in order to exercise its discretion either in rejecting or accepting it. If there is inordinate delay in considering the representation that would clearly amount to a violation of the provisions of art. 22(5) so as to render the detention unconstitutional and void.
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Sangam Spinners Ltd Vs. Union of India & Others
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Supreme Court in paragraph 4 has stated thus:- "4. Before we examine Section 3 to find out whether it is effective in its purpose or not we may say a few words about validating statutes in general. When a Legislature sets out to validate a tax declared by a court to be illegally collected under an ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively. The most important condition, of course, is that the Legislature must possess the power to impose the tax, for, if it does not, the action must ever remain ineffective and illegal. Granted legislative competence, it is not sufficient to declare merely that the decision of the Court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the Legislature does not possess or exercise. A courts decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. Ordinarily, a court holds a tax to be invalidly imposed because the power to tax is wanting or the statute or the rules or both are invalid or do not sufficiently create the jurisdiction. Validation of a tax so declared illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal. Sometimes this is done by providing for jurisdiction where jurisdiction had not been properly invested before. Sometimes this is done by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the re-enacted law. Sometimes the Legislature gives its own meaning and interpretation of the law under which tax was collected and by legislative fiat makes the new meaning binding upon courts. The Legislature may follow any one method or all of them and while it does so it may neutralise the effect of the earlier decision of the court which becomes ineffective after the change of the law. Whichever method is adopted it must be within the competence of the legislature and legal and adequate to attain the object of validation. If the Legislature has the power over the subject-matter and competence to make a valid law, it can at any time make such a valid law and make it retrospectively so as to bind even past transactions. The validity of a Validating Law, therefore, depends upon whether the Legislature possesses the competence which it claims over the subject-matter and whether in making the validation it removes the defect which the courts had found in the existing law and makes adequate provisions in the Validating Law for a valid imposition of the tax." 40. There are similar decisions to that effect of this Court in D.G. Gose & Co. (Agents) Pvt. Ltd. Vs. State of Kerala & Anr. reported in (1980) 2 SCC 410 . In paragraph 14 of the said judgment, this Court stated thus:- "14. Craies on Statute Law, seventh Edn., has stated the meaning of "retrospective" at p. 367 as follows:"A statute is to be deemed to be retrospective, which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already past. But a statute `is not properly called a retrospective statute because a part of the requisites for its action is drawn from a time antecedent to its passing."It has however, not been shown how it could be said that the Act has taken away or impaired any vested right of the assessees before us which they had acquired under any existing law, or what that vested right was. It may be that there was no liability to building tax until the promulgation of the Act (earlier the Ordinances) but mere absence of an earlier taxing statute cannot be said to create a "vested right", under any existing law, that it shall not be levied in future with effect from a date anterior to the passing of the Act. Nor can it be said that by imposing the building tax from an earlier date any new obligation or disability has been attached in respect of any earlier transaction or consideration. The Act is not therefore retrospective in the strictly technical sense." 41. In the light of the aforesaid decisions and legal position which emanates from reading of the provisions of the Act and the Rules framed there under and notifications which are issued from time to time, the contentions of the counsel appearing for the appellants are found to be without any merit. Since the product High Speed Diesel oil was excluded specifically from the list of eligible inputs in the notifications, there was no question of creation of any right in favour of the appellant to avail such benefit. Therefore, contention that a vested or accrued right is sought to be taken away by giving retrospective effect is without any merit. Consequently, in the facts of this case we are not required to answer whether a vested or accrued right could be taken away with retrospective effect. Further on a conjoint reading of all the notifications it is clearly established that the intention of the Government all along was to exclude the appellants from getting the benefit of the MODVAT credit, therefore, the contentions that the Finance Act violates the vested right is without any basis. The various decisions referred to and relied upon by the counsel appearing for the appellants in support of his contention that the vested right created in their favour could not have been divested by the respondent retrospectively is found to be based on misreading of the language of the aforesaid notifications which do not support, but in fact destroy the very basis of the case of the appellants.
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0[ds]41. In the light of the aforesaid decisions and legal position which emanates from reading of the provisions of the Act and the Rules framed there under and notifications which are issued from time to time, the contentions of the counsel appearing for the appellants are found to be without any merit. Since the product High Speed Diesel oil was excluded specifically from the list of eligible inputs in the notifications, there was no question of creation of any right in favour of the appellant to avail such benefit. Therefore, contention that a vested or accrued right is sought to be taken away by giving retrospective effect is without any merit. Consequently, in the facts of this case we are not required to answer whether a vested or accrued right could be taken away with retrospective effect. Further on a conjoint reading of all the notifications it is clearly established that the intention of the Government all along was to exclude the appellants from getting the benefit of the MODVAT credit, therefore, the contentions that the Finance Act violates the vested right is without any basis. The various decisions referred to and relied upon by the counsel appearing for the appellants in support of his contention that the vested right created in their favour could not have been divested by the respondent retrospectively is found to be based on misreading of the language of the aforesaid notifications which do not support, but in fact destroy the very basis of the case of the
| 0 | 5,344 | 270 |
### 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:
Supreme Court in paragraph 4 has stated thus:- "4. Before we examine Section 3 to find out whether it is effective in its purpose or not we may say a few words about validating statutes in general. When a Legislature sets out to validate a tax declared by a court to be illegally collected under an ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively. The most important condition, of course, is that the Legislature must possess the power to impose the tax, for, if it does not, the action must ever remain ineffective and illegal. Granted legislative competence, it is not sufficient to declare merely that the decision of the Court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the Legislature does not possess or exercise. A courts decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. Ordinarily, a court holds a tax to be invalidly imposed because the power to tax is wanting or the statute or the rules or both are invalid or do not sufficiently create the jurisdiction. Validation of a tax so declared illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal. Sometimes this is done by providing for jurisdiction where jurisdiction had not been properly invested before. Sometimes this is done by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the re-enacted law. Sometimes the Legislature gives its own meaning and interpretation of the law under which tax was collected and by legislative fiat makes the new meaning binding upon courts. The Legislature may follow any one method or all of them and while it does so it may neutralise the effect of the earlier decision of the court which becomes ineffective after the change of the law. Whichever method is adopted it must be within the competence of the legislature and legal and adequate to attain the object of validation. If the Legislature has the power over the subject-matter and competence to make a valid law, it can at any time make such a valid law and make it retrospectively so as to bind even past transactions. The validity of a Validating Law, therefore, depends upon whether the Legislature possesses the competence which it claims over the subject-matter and whether in making the validation it removes the defect which the courts had found in the existing law and makes adequate provisions in the Validating Law for a valid imposition of the tax." 40. There are similar decisions to that effect of this Court in D.G. Gose & Co. (Agents) Pvt. Ltd. Vs. State of Kerala & Anr. reported in (1980) 2 SCC 410 . In paragraph 14 of the said judgment, this Court stated thus:- "14. Craies on Statute Law, seventh Edn., has stated the meaning of "retrospective" at p. 367 as follows:"A statute is to be deemed to be retrospective, which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already past. But a statute `is not properly called a retrospective statute because a part of the requisites for its action is drawn from a time antecedent to its passing."It has however, not been shown how it could be said that the Act has taken away or impaired any vested right of the assessees before us which they had acquired under any existing law, or what that vested right was. It may be that there was no liability to building tax until the promulgation of the Act (earlier the Ordinances) but mere absence of an earlier taxing statute cannot be said to create a "vested right", under any existing law, that it shall not be levied in future with effect from a date anterior to the passing of the Act. Nor can it be said that by imposing the building tax from an earlier date any new obligation or disability has been attached in respect of any earlier transaction or consideration. The Act is not therefore retrospective in the strictly technical sense." 41. In the light of the aforesaid decisions and legal position which emanates from reading of the provisions of the Act and the Rules framed there under and notifications which are issued from time to time, the contentions of the counsel appearing for the appellants are found to be without any merit. Since the product High Speed Diesel oil was excluded specifically from the list of eligible inputs in the notifications, there was no question of creation of any right in favour of the appellant to avail such benefit. Therefore, contention that a vested or accrued right is sought to be taken away by giving retrospective effect is without any merit. Consequently, in the facts of this case we are not required to answer whether a vested or accrued right could be taken away with retrospective effect. Further on a conjoint reading of all the notifications it is clearly established that the intention of the Government all along was to exclude the appellants from getting the benefit of the MODVAT credit, therefore, the contentions that the Finance Act violates the vested right is without any basis. The various decisions referred to and relied upon by the counsel appearing for the appellants in support of his contention that the vested right created in their favour could not have been divested by the respondent retrospectively is found to be based on misreading of the language of the aforesaid notifications which do not support, but in fact destroy the very basis of the case of the appellants.
### Response:
0
### Explanation:
41. In the light of the aforesaid decisions and legal position which emanates from reading of the provisions of the Act and the Rules framed there under and notifications which are issued from time to time, the contentions of the counsel appearing for the appellants are found to be without any merit. Since the product High Speed Diesel oil was excluded specifically from the list of eligible inputs in the notifications, there was no question of creation of any right in favour of the appellant to avail such benefit. Therefore, contention that a vested or accrued right is sought to be taken away by giving retrospective effect is without any merit. Consequently, in the facts of this case we are not required to answer whether a vested or accrued right could be taken away with retrospective effect. Further on a conjoint reading of all the notifications it is clearly established that the intention of the Government all along was to exclude the appellants from getting the benefit of the MODVAT credit, therefore, the contentions that the Finance Act violates the vested right is without any basis. The various decisions referred to and relied upon by the counsel appearing for the appellants in support of his contention that the vested right created in their favour could not have been divested by the respondent retrospectively is found to be based on misreading of the language of the aforesaid notifications which do not support, but in fact destroy the very basis of the case of the
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Commissioner Of Income Tax Vs. Balbir Singh Maini
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throughout the agreement, and has at no stage purported to transfer rights akin to ownership to the developer. At the highest, possession alone is given under the agreement, and that too for a specific purpose -the purpose being to develop the property, as envisaged by all the parties. We are, therefore, of the view that this clause will also not rope in the present transaction.24. The matter can also be viewed from a slightly different angle. Shri Vohra is right when he has referred to Sections 45 and 48 of the Income Tax Act and has then argued that some real income must "arise" on the assumption that there is transfer of a capital asset. This income must have been received or have "accrued" under Section 48 as a result of the transfer of the capital asset. 25. This Court in E.D. Sassoon & Co. Ltd. v. CIT, (1955) 1 SCR 313 at 343 held: "It is clear therefore that income may accrue to an assessee without the actual receipt of the same. If the assessee acquires a right to receive the income, the income can be said to have accrued to him though it may be received later on its being ascertained. The basic conception is that he must have acquired a right to receive the income. There must be a debt owed to him by somebody. There must be as is otherwise expressed debitum in presenti, solvendum in futuro; See W.S. Try Ltd. v. Johnson (Inspector of Taxes) [(1946) 1 AER 532 at p. 539], and Webb v. Stenton, Garnishees [11 QBD 518 at p. 522 and 527]. Unless and until there is created in favour of the assessee a debt due by somebody it cannot be said that he has acquired a right to receive the income or that income has accrued to him." 26. This Court, in Commissioner of Income Tax v. Excel Industries, (2014) 13 SCC 459 at 463-464 referred to various judgments on the expression "accrues", and then held: "14. First of all, it is now well settled that income tax cannot be levied on hypothetical income. In CIT v. Shoorji Vallabhdas and Co. [CIT v. Shoorji Vallabhdas and Co., (1962) 46 ITR 144 (SC)] it was held as follows: (ITR p. 148)"... Income tax is a levy on income. No doubt, the Income Tax Act takes into account two points of time at which the liability to tax is attracted, viz., the accrual of the income or its receipt; but the substance of the matter is the income. If income does not result at all, there cannot be a tax, even though in bookkeeping, an entry is made about a `hypothetical income, which does not materialise. Where income has, in fact, been received and is subsequently given up in such circumstances that it remains the income of the recipient, even though given up, the tax may be payable. Where, however, the income can be said not to have resulted at all, there is obviously neither accrual nor receipt of income, even though an entry to that effect might, in certain circumstances, have been made in the books of account."15. The above passage was cited with approval in Morvi Industries Ltd. v. CIT [Morvi Industries Ltd. v. CIT, (1972) 4 SCC 451 : 1974 SCC (Tax) 140 : (1971) 82 ITR 835 ] in which this Court also considered the dictionary meaning of the word "accrue" and held that income can be said to accrue when it becomes due. It was then observed that: (SCC p. 454, para 11)"11. ... the date of payment ... does not affect the accrual of income. The moment the income accrues, the assessee gets vested with the right to claim that amount even though it may not be immediately."16. This Court further held, and in our opinion more importantly, that income accrues when there "arises a corresponding liability of the other party from whom the income becomes due to pay that amount".17. It follows from these decisions that income accrues when it becomes due but it must also be accompanied by a corresponding liability of the other party to pay the amount. Only then can it be said that for the purposes of taxability that the income is not hypothetical and it has really accrued to the assessee.18. Insofar as the present case is concerned, even if it is assumed that the assessee was entitled to the benefits under the advance licences as well as under the duty entitlement passbook, there was no corresponding liability on the Customs Authorities to pass on the benefit of duty-free imports to the assessee until the goods are actually imported and made available for clearance. The benefits represent, at best, a hypothetical income which may or may not materialise and its money value is, therefore, not the income of the assessee." 27. In the facts of the present case, it is clear that the income from capital gain on a transaction which never materialized is, at best, a hypothetical income. It is admitted that, for want of permissions, the entire transaction of development envisaged in the JDA fell through. In point of fact, income did not result at all for the aforesaid reason. This being the case, it is clear that there is no profit or gain which arises from the transfer of a capital asset, which could be brought to tax under Section 45 read with Section 48 of the Income Tax Act.28. In the present case, the assessee did not acquire any right to receive income, inasmuch as such alleged right was dependent upon the necessary permissions being obtained. This being the case, in the circumstances, there was no debt owed to the assessees by the developers and therefore, the assessees have not acquired any right to receive income under the JDA. This being so, no profits or gains "arose" from the transfer of a capital asset so as to attract Sections 45 and 48 of the Income Tax Act.
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1[ds]16. A reading of the JDA shows that, it is essentially an agreement to facilitate development of 21.2 acres so that the developers build at their own cost, after obtaining necessary approvals, flats of a given size, some of which were then to be handed over to the members of the society. Payments were also to be made by the developer to each member in addition to giving each member a certain number of flats depending upon the size of the members plot that was handed over. What is important to bear in mind is that payments under the third instalment were only to be made after the grant of approvals and not otherwise, and that it is an admitted position that this was never done because no approvals could be obtained as the High Court ultimately interdicted the project. Also, the termination clause is of great significance because it shows that in the event of the JDA being terminated, whatever parcels of land have already been conveyed, will stand conveyed, but that no other conveyances of the remaining land would take place.The effect of the aforesaid amendment is that, on and after the commencement of the Amendment Act of 2001, if an agreement, like the JDA in the present case, is not registered, then it shall have no effect in law for the purposes of Section 53A. In short, there is no agreement in the eyes of law which can be enforced under Section 53A of the Transfer of Property Act. This being the case, we are of the view that the High Court was right in stating that in order to qualify as a "transfer" of a capital asset under Section 2(47)(v) of the Act, there must be a "contract" which can be enforced in law under Section 53A of the Transfer of Property Act. A reading of Section 17(1A) and Section 49 of the Registration Act shows that in the eyes of law, there is no contract which can be taken cognizance of, for the purpose specified in Section 53A. The ITAT was not correct in referring to the expression "of the nature referred to in Section 53A" in Section 2(47)(v) in order to arrive at the opposite conclusion. This expression was used by the legislature ever since(v) was inserted by the Finance Act of 1987 w.e.f. 01.04.1988. All that is meant by this expression is to refer to the ingredients of applicability of Section 53A to the contracts mentioned therein. It is only where the contract contains all the six features mentioned in Shrimant Shamrao Suryavanshi (supra), that the Section applies, and this is what is meant by the expression "of the nature referred to in Section 53A". This expression cannot be stretched to refer to an amendment that was made years later in 2001, so as to then say that though registration of a contract is required by the Amendment Act of 2001, yet the aforesaid expression "of the nature referred to in Section 53A" would somehow refer only to the nature of contract mentioned in Section 53A, which would then in turn not require registration. As has been stated above, there is no contract in the eye of law in force under Section 53A after 2001 unless the said contract is registered. This being the case, and it being clear that the said JDA was never registered, since the JDA has no efficacy in the eye of law, obviously no "transfer" can be said to have taken place under the aforesaid document. Since we are deciding this case on this legal ground, it is unnecessary for us to go into the other questions decided by the High Court, namely, whether under the JDA possession was or was not taken; whether only a licence was granted to develop the property; and whether the developers were or were not ready and willing to carry out their part of the bargain. Since we are of the view that(v) of Section 2(47) of the Act is not attracted on the facts of this case, we need not go into any other factual question.21. However, the High Court has held that Section 2(47)(vi) will not apply for the reason that there was no change in membership of the society, as contemplated. We are afraid that we cannot agree with the High Court on this score. Under Section 2(47)(vi), any transaction which has the effect of transferring or enabling the enjoyment of any immovable property would come within its purview. The High Court has not adverted to the expression "or in any other manner whatsoever" in(vi), which would show that it is not necessary that the transaction refers to the membership of a cooperative society. We have, therefore, to see whether the impugned transaction can fall within this provision.22. The object of Section 2(47)(vi) appears to be to bring within the tax net a de facto transfer of any immovable property. The expression "enabling the enjoyment of" takes color from the earlier expression "transferring", so that it is clear that any transaction which enables the enjoyment of immovable property must be enjoyment as a purported owner thereof.[1*] The idea is to bring within the tax net, transactions, where, though title may not be transferred in law, there is, in substance, a transfer of title in fact.A reading of the JDA in the present case would show that the owner continues to be the owner throughout the agreement, and has at no stage purported to transfer rights akin to ownership to the developer. At the highest, possession alone is given under the agreement, and that too for a specific purposethe purpose being to develop the property, as envisaged by all the parties. We are, therefore, of the view that this clause will also not rope in the present transaction.24. The matter can also be viewed from a slightly different angle. Shri Vohra is right when he has referred to Sections 45 and 48 of the Income Tax Act and has then argued that some real income must "arise" on the assumption that there is transfer of a capital asset. This income must have been received or have "accrued" under Section 48 as a result of the transfer of the capital asset.In the facts of the present case, it is clear that the income from capital gain on a transaction which never materialized is, at best, a hypothetical income. It is admitted that, for want of permissions, the entire transaction of development envisaged in the JDA fell through. In point of fact, income did not result at all for the aforesaid reason. This being the case, it is clear that there is no profit or gain which arises from the transfer of a capital asset, which could be brought to tax under Section 45 read with Section 48 of the Income Tax Act.28. In the present case, the assessee did not acquire any right to receive income, inasmuch as such alleged right was dependent upon the necessary permissions being obtained. This being the case, in the circumstances, there was no debt owed to the assessees by the developers and therefore, the assessees have not acquired any right to receive income under the JDA. This being so, no profits or gains "arose" from the transfer of a capital asset so as to attract Sections 45 and 48 of the Income Tax Act.
| 1 | 8,080 | 1,414 |
### 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:
throughout the agreement, and has at no stage purported to transfer rights akin to ownership to the developer. At the highest, possession alone is given under the agreement, and that too for a specific purpose -the purpose being to develop the property, as envisaged by all the parties. We are, therefore, of the view that this clause will also not rope in the present transaction.24. The matter can also be viewed from a slightly different angle. Shri Vohra is right when he has referred to Sections 45 and 48 of the Income Tax Act and has then argued that some real income must "arise" on the assumption that there is transfer of a capital asset. This income must have been received or have "accrued" under Section 48 as a result of the transfer of the capital asset. 25. This Court in E.D. Sassoon & Co. Ltd. v. CIT, (1955) 1 SCR 313 at 343 held: "It is clear therefore that income may accrue to an assessee without the actual receipt of the same. If the assessee acquires a right to receive the income, the income can be said to have accrued to him though it may be received later on its being ascertained. The basic conception is that he must have acquired a right to receive the income. There must be a debt owed to him by somebody. There must be as is otherwise expressed debitum in presenti, solvendum in futuro; See W.S. Try Ltd. v. Johnson (Inspector of Taxes) [(1946) 1 AER 532 at p. 539], and Webb v. Stenton, Garnishees [11 QBD 518 at p. 522 and 527]. Unless and until there is created in favour of the assessee a debt due by somebody it cannot be said that he has acquired a right to receive the income or that income has accrued to him." 26. This Court, in Commissioner of Income Tax v. Excel Industries, (2014) 13 SCC 459 at 463-464 referred to various judgments on the expression "accrues", and then held: "14. First of all, it is now well settled that income tax cannot be levied on hypothetical income. In CIT v. Shoorji Vallabhdas and Co. [CIT v. Shoorji Vallabhdas and Co., (1962) 46 ITR 144 (SC)] it was held as follows: (ITR p. 148)"... Income tax is a levy on income. No doubt, the Income Tax Act takes into account two points of time at which the liability to tax is attracted, viz., the accrual of the income or its receipt; but the substance of the matter is the income. If income does not result at all, there cannot be a tax, even though in bookkeeping, an entry is made about a `hypothetical income, which does not materialise. Where income has, in fact, been received and is subsequently given up in such circumstances that it remains the income of the recipient, even though given up, the tax may be payable. Where, however, the income can be said not to have resulted at all, there is obviously neither accrual nor receipt of income, even though an entry to that effect might, in certain circumstances, have been made in the books of account."15. The above passage was cited with approval in Morvi Industries Ltd. v. CIT [Morvi Industries Ltd. v. CIT, (1972) 4 SCC 451 : 1974 SCC (Tax) 140 : (1971) 82 ITR 835 ] in which this Court also considered the dictionary meaning of the word "accrue" and held that income can be said to accrue when it becomes due. It was then observed that: (SCC p. 454, para 11)"11. ... the date of payment ... does not affect the accrual of income. The moment the income accrues, the assessee gets vested with the right to claim that amount even though it may not be immediately."16. This Court further held, and in our opinion more importantly, that income accrues when there "arises a corresponding liability of the other party from whom the income becomes due to pay that amount".17. It follows from these decisions that income accrues when it becomes due but it must also be accompanied by a corresponding liability of the other party to pay the amount. Only then can it be said that for the purposes of taxability that the income is not hypothetical and it has really accrued to the assessee.18. Insofar as the present case is concerned, even if it is assumed that the assessee was entitled to the benefits under the advance licences as well as under the duty entitlement passbook, there was no corresponding liability on the Customs Authorities to pass on the benefit of duty-free imports to the assessee until the goods are actually imported and made available for clearance. The benefits represent, at best, a hypothetical income which may or may not materialise and its money value is, therefore, not the income of the assessee." 27. In the facts of the present case, it is clear that the income from capital gain on a transaction which never materialized is, at best, a hypothetical income. It is admitted that, for want of permissions, the entire transaction of development envisaged in the JDA fell through. In point of fact, income did not result at all for the aforesaid reason. This being the case, it is clear that there is no profit or gain which arises from the transfer of a capital asset, which could be brought to tax under Section 45 read with Section 48 of the Income Tax Act.28. In the present case, the assessee did not acquire any right to receive income, inasmuch as such alleged right was dependent upon the necessary permissions being obtained. This being the case, in the circumstances, there was no debt owed to the assessees by the developers and therefore, the assessees have not acquired any right to receive income under the JDA. This being so, no profits or gains "arose" from the transfer of a capital asset so as to attract Sections 45 and 48 of the Income Tax Act.
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1
### Explanation:
short, there is no agreement in the eyes of law which can be enforced under Section 53A of the Transfer of Property Act. This being the case, we are of the view that the High Court was right in stating that in order to qualify as a "transfer" of a capital asset under Section 2(47)(v) of the Act, there must be a "contract" which can be enforced in law under Section 53A of the Transfer of Property Act. A reading of Section 17(1A) and Section 49 of the Registration Act shows that in the eyes of law, there is no contract which can be taken cognizance of, for the purpose specified in Section 53A. The ITAT was not correct in referring to the expression "of the nature referred to in Section 53A" in Section 2(47)(v) in order to arrive at the opposite conclusion. This expression was used by the legislature ever since(v) was inserted by the Finance Act of 1987 w.e.f. 01.04.1988. All that is meant by this expression is to refer to the ingredients of applicability of Section 53A to the contracts mentioned therein. It is only where the contract contains all the six features mentioned in Shrimant Shamrao Suryavanshi (supra), that the Section applies, and this is what is meant by the expression "of the nature referred to in Section 53A". This expression cannot be stretched to refer to an amendment that was made years later in 2001, so as to then say that though registration of a contract is required by the Amendment Act of 2001, yet the aforesaid expression "of the nature referred to in Section 53A" would somehow refer only to the nature of contract mentioned in Section 53A, which would then in turn not require registration. As has been stated above, there is no contract in the eye of law in force under Section 53A after 2001 unless the said contract is registered. This being the case, and it being clear that the said JDA was never registered, since the JDA has no efficacy in the eye of law, obviously no "transfer" can be said to have taken place under the aforesaid document. Since we are deciding this case on this legal ground, it is unnecessary for us to go into the other questions decided by the High Court, namely, whether under the JDA possession was or was not taken; whether only a licence was granted to develop the property; and whether the developers were or were not ready and willing to carry out their part of the bargain. Since we are of the view that(v) of Section 2(47) of the Act is not attracted on the facts of this case, we need not go into any other factual question.21. However, the High Court has held that Section 2(47)(vi) will not apply for the reason that there was no change in membership of the society, as contemplated. We are afraid that we cannot agree with the High Court on this score. Under Section 2(47)(vi), any transaction which has the effect of transferring or enabling the enjoyment of any immovable property would come within its purview. The High Court has not adverted to the expression "or in any other manner whatsoever" in(vi), which would show that it is not necessary that the transaction refers to the membership of a cooperative society. We have, therefore, to see whether the impugned transaction can fall within this provision.22. The object of Section 2(47)(vi) appears to be to bring within the tax net a de facto transfer of any immovable property. The expression "enabling the enjoyment of" takes color from the earlier expression "transferring", so that it is clear that any transaction which enables the enjoyment of immovable property must be enjoyment as a purported owner thereof.[1*] The idea is to bring within the tax net, transactions, where, though title may not be transferred in law, there is, in substance, a transfer of title in fact.A reading of the JDA in the present case would show that the owner continues to be the owner throughout the agreement, and has at no stage purported to transfer rights akin to ownership to the developer. At the highest, possession alone is given under the agreement, and that too for a specific purposethe purpose being to develop the property, as envisaged by all the parties. We are, therefore, of the view that this clause will also not rope in the present transaction.24. The matter can also be viewed from a slightly different angle. Shri Vohra is right when he has referred to Sections 45 and 48 of the Income Tax Act and has then argued that some real income must "arise" on the assumption that there is transfer of a capital asset. This income must have been received or have "accrued" under Section 48 as a result of the transfer of the capital asset.In the facts of the present case, it is clear that the income from capital gain on a transaction which never materialized is, at best, a hypothetical income. It is admitted that, for want of permissions, the entire transaction of development envisaged in the JDA fell through. In point of fact, income did not result at all for the aforesaid reason. This being the case, it is clear that there is no profit or gain which arises from the transfer of a capital asset, which could be brought to tax under Section 45 read with Section 48 of the Income Tax Act.28. In the present case, the assessee did not acquire any right to receive income, inasmuch as such alleged right was dependent upon the necessary permissions being obtained. This being the case, in the circumstances, there was no debt owed to the assessees by the developers and therefore, the assessees have not acquired any right to receive income under the JDA. This being so, no profits or gains "arose" from the transfer of a capital asset so as to attract Sections 45 and 48 of the Income Tax Act.
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Hari Singh And Ors Vs. The Military Estate Officer And Anr
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Act was impeached on that ground. This Court did not accept the submission and said "if two procedures exist and one is followed and the other discarded, there may in a given case be found discrimination. But the Legislature has still the competence to put out of action retrospectively one of the procedures leaving one procedure only available, namely, the one followed and thus to make disappear the discrimination. In this way a Validating Act can get over discrimination. Where, however, the legislative competence is not available, the discrimination must remain for ever, since that discrimination can only be removed by a legislature having power to create a single procedure out of two and not by a legislature which has not that power".20.The Mysore case, (1969) 3 SCR 55 = (AIR 1969 SC 477 ) (supra) is an authority for the proposition that if there is legislative competence the legislature can put out of action retrospectively one of the procedures leaving one procedure only available and thus removing the vice of discrimination. That is exactly what has happened in the 1971 Act in the present appeals. The 1958 Act was challenged on the ground that there were two procedures and the choice of either was left to the unguided discretion of the Estate Officer. The 1971 Act does not leave such discretion to the Estate Officer. Under the 1971 Act the is only one procedure. The deeming provision contained in Section 20 of the 1971 Act validates actions done by virtue of the provisions of the 1971 Act.21. The meaning of a Validation Act is to remove the causes for ineffectiveness or invalidity of actions or proceedings which are validated by a legislative measure. This Court in Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, (1970) 1 SCR 388 = (AIR 1970 SC 192 ) dealt with the Gujarat Imposition of Taxes by Municipalities (Validation) Act, 1963. Under Section 73 of the Bombay Municipal Boroughs Act, 1925 a municipality could levy a rate on building or lands or both situated within the municipality. This Court held in Patel Gordhandas Hargovindas v. Municipal Commissioner Ahmedabad (1964) 2 S. C. R. 608 = (AIR 1963 SC 1742 ) that the term rate must be confined to an impost on the basis of annual letting value and it could not be validly a levy on the basis of capital value. Because of this decision the Gujarat Legislature passed in Gujarat Imposition of Taxes by Municipalities (Validation) Act, 1963. The 1963 Act provided that past assessment and collection of rate on lands and buildings on the basis of capital value or a percentage of capital value was declared valid despite any judgment of a Court or Tribunal to the contrary. The earlier decision of this Court was applicable to the meaning of the word rate occurring in the 1925 Act. The Validation Act gave its own meaning and interpretation of the law under which the tax was collected. It was also said by the Court that a tax declared illegal could be validated if the ground of illegality was capable of being removed. Therefore, a validating law is upheld first by finding out whether the legislature possesses competence over the subject-matter, and, secondly, whether by validation the legislature has removed the defect which the courts had found in the previous law.22. The legislature had legislative competence to enact the 1971 Act. It means that it could legislate on the subject of providing a speedy procedure for eviction of persons in unauthorised occupation of public premises. The legislature has power to pass laws with retrospective operation. The challenge to the 1971 Act is that the 1958 Act is unconstitutional, and, therefore, there cannot be validation of anything done under an unconstitutinal Act. The fallacy of the appellants submission is in overlooking the crucial provisions in the 1971 Act that the 1971 Act is effective from 16 September, 1958 and the action done under the 1958 Act is deemed to be done under the 1971 Act. There is no vice of discrimination under the 1971 Act. There is only one procedure under the 1971 Act.23. It was contended that the word premises in the Act would not apply to agricultural land. The word premises is defined to mean any land. Any land will include agricultural land. There is nothing in the Act to exclude the applicability of the Act to agricultural land. Reference was made to Sections 42 and 43 of the Punjab Tenancy Act, 1887. Section 42 of the 1887 Act speaks of restriction on ejectment. Section 43 provides for application to the Revenue Officer for ejectment. It was said on behalf of the appellants that Article 14 of the Constitution was offended because of the procedure under the Punjab Tenancy Act, 1887 being available. There is no substance in that contention. Section 15 of the 1971 Act provides only one procedure for ejectment of persons in unauthorised occupation of public premises.24. The 1958 Act has not been declared by this Court to be unconstitutonal. Sec. 5 of the 1959 Punjab Act was held by this Court in the decision in Northern India Caterers Private Ltd. case, (1967) 3 SCR 399 = (AIR 1967 SC 1581 ) (supra) to be an infraction of Article 14. Section 5 of the 1958 Central Act is in terms similar to section 5 of the 1959 Punjab Act. The arguments on behalf of the appellants therefore proceeded on the footing that the 1958 Act will be presumed to be unconstitutional. It was therefore, said that the 1971 Act could not validate actions done under the 1958 Act. The answer is for the reasons indicated above that the legislature was competent to enact this legislation in 1958 and the legislature by the 1971 Act has given the legislation full retrospective operation. The legislature has power to validate actions under an earlier Act by removing the infirmities of the earlier Act. The 1971 Act has achieved that object of validation.
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0[ds]12. The 1971 Act came into existence to validate anything done or any action taken or purported to have been done or taken under the 1958 Act. In the first place, the 1971 Act is made retrospective with effect from 16 September, 1958 except sections 11, 19 and 20. In the second place, section 20 of the 1971 Act which is described as the section for validation provides that anything done or any action taken or purported to have been done or taken shall be deemed to be as valid and effective as if such thing or action was done or taken under the corresponding provisions of the 1971 Act. In the third place, the 1971 Act by S.15 provided bar of jurisdiction of courts in respect of eviction of any person who is in unauthorised occupation of any public premises. It, therefore, follows that under the provisions of the 1971 Act which had retrospective operation from 16 September, 1958, there is only one procedure available for eviction of persons in unauthorised occupation of public premises. That procedure is to be found in the 1971 Act. The other courts have no jurisdiction in these matters. The vice of Article 14 which was found by this Court in the decision of Northern India Caterers Private Ltd. (1967) 3 SCR 399 = (AIR 1967 SC 1581 ) (supra) no longer appears under the 1971 Act.The validity of the 1971 Act depends on the legislative competence to validate anything done or any action taken or purported to have been done or taken under the 1958 Act. Validation is achieved by enacting that anything done or any action taken or purported to have been done or taken shall be deemed to be as valid and effective as if such thing or action was done or taken under the corresponding provisions of the 1971 Act. The result is that the 1971 Act is made retrospective with effect from 16 September, 1958. Anything done or any action taken under the 1958 Act is to be deemed as valid and effective under the provisions of the 1971 Act. The consequence is that the validity of action done or taken is to be tested with reference to the provisions of the 1971 Act. This Court in West Ramnad Electric Distribution Co. Ltd. v. State of Madras, (1963) 2 SCR 747 = (AIR 1962 SC 1753 ) held that it is within the competence of the legislature to enact a law and make it retrospective in operation.The ruling of this Court in West Ramnad Electric Distribution Co. Ltd. case, (1963) 2 SCR 747 = (AIR 1962 SC 1753 ) (supra) establishes competence of the legislature to make laws retrospective in operation for the purpose of validation of action done under an earlier Act which has been declared by a decision of the Court to be invalid. It is to be appreciated that the validation is by virtue of provisions of the subsequent piece of legislation.The distinction between West Ramnad Electric Distribution Co. Ltd. case, (1963) 2 SCR 747 = (AIR 1962 SC 1753 ) and Durga Nath Sarmas case (1968) 1 SCR 561 = (AIR 1968 SC 394 ) (supra) is this. In the West Ramnad Electric Distribution Co. Ltd. case, (1963) 2 SCR 747 = (AIR 1962 SC 1753 ) (supra) the 1954 Act validated actions and proceedings under the earlier Act by a deeming provision that acts or things were done by virtue of the provisions of the 1954 Act. The 1954 Act was not found to have any constitutional infirmity. On the other hand Durga Nath Sarmas case, (1968) 1 SCR 561 = (AIR 1968 SC 394 ) (supra) validated by the 1960 Act acquisition under the 1955 Act. The acquisition was not by or under the 1960 Act. The acquisition was under the 1955 Act. The 1955 Act was constitutionally invalid. Therefore, there was no validation of earlier acquisition.The meaning of a Validation Act is to remove the causes for ineffectiveness or invalidity of actions or proceedings which are validated by a legislative measure. This Court in Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, (1970) 1 SCR 388 = (AIR 1970 SC 192 ) dealt with the Gujarat Imposition of Taxes by Municipalities (Validation) Act, 1963. Under Section 73 of the Bombay Municipal Boroughs Act, 1925 a municipality could levy a rate on building or lands or both situated within the municipality. This Court held in Patel Gordhandas Hargovindas v. Municipal Commissioner Ahmedabad (1964) 2 S. C. R. 608 = (AIR 1963 SC 1742 ) that the term rate must be confined to an impost on the basis of annual letting value and it could not be validly a levy on the basis of capital value. Because of this decision the Gujarat Legislature passed in Gujarat Imposition of Taxes by Municipalities (Validation) Act, 1963. The 1963 Act provided that past assessment and collection of rate on lands and buildings on the basis of capital value or a percentage of capital value was declared valid despite any judgment of a Court or Tribunal to the contrary. The earlier decision of this Court was applicable to the meaning of the word rate occurring in the 1925 Act. The Validation Act gave its own meaning and interpretation of the law under which the tax was collected. It was also said by the Court that a tax declared illegal could be validated if the ground of illegality was capable of being removed. Therefore, a validating law is upheld first by finding out whether the legislature possesses competence over the subject-matter, and, secondly, whether by validation the legislature has removed the defect which the courts had found in the previous law.22. The legislature had legislative competence to enact the 1971 Act. It means that it could legislate on the subject of providing a speedy procedure for eviction of persons in unauthorised occupation of public premises. The legislature has power to pass laws with retrospective operation. The challenge to the 1971 Act is that the 1958 Act is unconstitutional, and, therefore, there cannot be validation of anything done under an unconstitutinal Act. The fallacy of the appellants submission is in overlooking the crucial provisions in the 1971 Act that the 1971 Act is effective from 16 September, 1958 and the action done under the 1958 Act is deemed to be done under the 1971 Act. There is no vice of discrimination under the 1971 Act. There is only one procedure under the 1971word premises is defined to mean any land. Any land will include agricultural land. There is nothing in the Act to exclude the applicability of the Act to agricultural land. Reference was made to Sections 42 and 43 of the Punjab Tenancy Act, 1887. Section 42 of the 1887 Act speaks of restriction on ejectment. Section 43 provides for application to the Revenue Officer foris no substance in that contention. Section 15 of the 1971 Act provides only one procedure for ejectment of persons in unauthorised occupation of public premises.24. The 1958 Act has not been declared by this Court to be unconstitutonal. Sec. 5 of the 1959 Punjab Act was held by this Court in the decision in Northern India Caterers Private Ltd. case, (1967) 3 SCR 399 = (AIR 1967 SC 1581 ) (supra) to be an infraction of Article 14. Section 5 of the 1958 Central Act is in terms similar to section 5 of the 1959 Punjab Act. The arguments on behalf of the appellants therefore proceeded on the footing that the 1958 Act will be presumed to be unconstitutional. It was therefore, said that the 1971 Act could not validate actions done under the 1958 Act. The answer is for the reasons indicated above that the legislature was competent to enact this legislation in 1958 and the legislature by the 1971 Act has given the legislation full retrospective operation. The legislature has power to validate actions under an earlier Act by removing the infirmities of the earlier Act. The 1971 Act has achieved that object of validation.This Court said that if the Act is retrospective in operation and section 24 has been enacted for the purpose of retrospectively validating actions taken under the provisions of the earlier Act it must follow by the very retrospective operation of the relevant provisions that at the time when the impugned notification was issued, these provisions were in existence. That is the plain and obvious effect of the retrospective operation of the statute. Therefore in considering whether Article 31 (1) has been complied with or not, we must assume that before the notification was issued, the relevant provisions of the Act were in existence and so, Article 31 (1) must be held to have been complied with in that sense".15. In West Ramnad Electric Distribution Co. Ltd. case, (1963) 2 SCR 747 = (AIR 1962 SC 1753 ) (supra) this Court referred to the provisions of Article 20 of the Constitution to emphasise the instance where the Constitution prevented retrospective operation of any law. Accent was placed on the words "law in force at the time" occurring in Article 20. The words "by authority of law" in Article 31 (1) were distinguished from the words occurring in Article 20. This Court said that if subsequent law passed by the legislature was retrospective in operation, it would satisfy the requirement of Art.31 (1) and would validate the impugned notification in the West Ramnad Electric Distribution Co. Ltd. case (supra).
| 0 | 5,569 | 1,750 |
### 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:
Act was impeached on that ground. This Court did not accept the submission and said "if two procedures exist and one is followed and the other discarded, there may in a given case be found discrimination. But the Legislature has still the competence to put out of action retrospectively one of the procedures leaving one procedure only available, namely, the one followed and thus to make disappear the discrimination. In this way a Validating Act can get over discrimination. Where, however, the legislative competence is not available, the discrimination must remain for ever, since that discrimination can only be removed by a legislature having power to create a single procedure out of two and not by a legislature which has not that power".20.The Mysore case, (1969) 3 SCR 55 = (AIR 1969 SC 477 ) (supra) is an authority for the proposition that if there is legislative competence the legislature can put out of action retrospectively one of the procedures leaving one procedure only available and thus removing the vice of discrimination. That is exactly what has happened in the 1971 Act in the present appeals. The 1958 Act was challenged on the ground that there were two procedures and the choice of either was left to the unguided discretion of the Estate Officer. The 1971 Act does not leave such discretion to the Estate Officer. Under the 1971 Act the is only one procedure. The deeming provision contained in Section 20 of the 1971 Act validates actions done by virtue of the provisions of the 1971 Act.21. The meaning of a Validation Act is to remove the causes for ineffectiveness or invalidity of actions or proceedings which are validated by a legislative measure. This Court in Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, (1970) 1 SCR 388 = (AIR 1970 SC 192 ) dealt with the Gujarat Imposition of Taxes by Municipalities (Validation) Act, 1963. Under Section 73 of the Bombay Municipal Boroughs Act, 1925 a municipality could levy a rate on building or lands or both situated within the municipality. This Court held in Patel Gordhandas Hargovindas v. Municipal Commissioner Ahmedabad (1964) 2 S. C. R. 608 = (AIR 1963 SC 1742 ) that the term rate must be confined to an impost on the basis of annual letting value and it could not be validly a levy on the basis of capital value. Because of this decision the Gujarat Legislature passed in Gujarat Imposition of Taxes by Municipalities (Validation) Act, 1963. The 1963 Act provided that past assessment and collection of rate on lands and buildings on the basis of capital value or a percentage of capital value was declared valid despite any judgment of a Court or Tribunal to the contrary. The earlier decision of this Court was applicable to the meaning of the word rate occurring in the 1925 Act. The Validation Act gave its own meaning and interpretation of the law under which the tax was collected. It was also said by the Court that a tax declared illegal could be validated if the ground of illegality was capable of being removed. Therefore, a validating law is upheld first by finding out whether the legislature possesses competence over the subject-matter, and, secondly, whether by validation the legislature has removed the defect which the courts had found in the previous law.22. The legislature had legislative competence to enact the 1971 Act. It means that it could legislate on the subject of providing a speedy procedure for eviction of persons in unauthorised occupation of public premises. The legislature has power to pass laws with retrospective operation. The challenge to the 1971 Act is that the 1958 Act is unconstitutional, and, therefore, there cannot be validation of anything done under an unconstitutinal Act. The fallacy of the appellants submission is in overlooking the crucial provisions in the 1971 Act that the 1971 Act is effective from 16 September, 1958 and the action done under the 1958 Act is deemed to be done under the 1971 Act. There is no vice of discrimination under the 1971 Act. There is only one procedure under the 1971 Act.23. It was contended that the word premises in the Act would not apply to agricultural land. The word premises is defined to mean any land. Any land will include agricultural land. There is nothing in the Act to exclude the applicability of the Act to agricultural land. Reference was made to Sections 42 and 43 of the Punjab Tenancy Act, 1887. Section 42 of the 1887 Act speaks of restriction on ejectment. Section 43 provides for application to the Revenue Officer for ejectment. It was said on behalf of the appellants that Article 14 of the Constitution was offended because of the procedure under the Punjab Tenancy Act, 1887 being available. There is no substance in that contention. Section 15 of the 1971 Act provides only one procedure for ejectment of persons in unauthorised occupation of public premises.24. The 1958 Act has not been declared by this Court to be unconstitutonal. Sec. 5 of the 1959 Punjab Act was held by this Court in the decision in Northern India Caterers Private Ltd. case, (1967) 3 SCR 399 = (AIR 1967 SC 1581 ) (supra) to be an infraction of Article 14. Section 5 of the 1958 Central Act is in terms similar to section 5 of the 1959 Punjab Act. The arguments on behalf of the appellants therefore proceeded on the footing that the 1958 Act will be presumed to be unconstitutional. It was therefore, said that the 1971 Act could not validate actions done under the 1958 Act. The answer is for the reasons indicated above that the legislature was competent to enact this legislation in 1958 and the legislature by the 1971 Act has given the legislation full retrospective operation. The legislature has power to validate actions under an earlier Act by removing the infirmities of the earlier Act. The 1971 Act has achieved that object of validation.
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the other hand Durga Nath Sarmas case, (1968) 1 SCR 561 = (AIR 1968 SC 394 ) (supra) validated by the 1960 Act acquisition under the 1955 Act. The acquisition was not by or under the 1960 Act. The acquisition was under the 1955 Act. The 1955 Act was constitutionally invalid. Therefore, there was no validation of earlier acquisition.The meaning of a Validation Act is to remove the causes for ineffectiveness or invalidity of actions or proceedings which are validated by a legislative measure. This Court in Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, (1970) 1 SCR 388 = (AIR 1970 SC 192 ) dealt with the Gujarat Imposition of Taxes by Municipalities (Validation) Act, 1963. Under Section 73 of the Bombay Municipal Boroughs Act, 1925 a municipality could levy a rate on building or lands or both situated within the municipality. This Court held in Patel Gordhandas Hargovindas v. Municipal Commissioner Ahmedabad (1964) 2 S. C. R. 608 = (AIR 1963 SC 1742 ) that the term rate must be confined to an impost on the basis of annual letting value and it could not be validly a levy on the basis of capital value. Because of this decision the Gujarat Legislature passed in Gujarat Imposition of Taxes by Municipalities (Validation) Act, 1963. The 1963 Act provided that past assessment and collection of rate on lands and buildings on the basis of capital value or a percentage of capital value was declared valid despite any judgment of a Court or Tribunal to the contrary. The earlier decision of this Court was applicable to the meaning of the word rate occurring in the 1925 Act. The Validation Act gave its own meaning and interpretation of the law under which the tax was collected. It was also said by the Court that a tax declared illegal could be validated if the ground of illegality was capable of being removed. Therefore, a validating law is upheld first by finding out whether the legislature possesses competence over the subject-matter, and, secondly, whether by validation the legislature has removed the defect which the courts had found in the previous law.22. The legislature had legislative competence to enact the 1971 Act. It means that it could legislate on the subject of providing a speedy procedure for eviction of persons in unauthorised occupation of public premises. The legislature has power to pass laws with retrospective operation. The challenge to the 1971 Act is that the 1958 Act is unconstitutional, and, therefore, there cannot be validation of anything done under an unconstitutinal Act. The fallacy of the appellants submission is in overlooking the crucial provisions in the 1971 Act that the 1971 Act is effective from 16 September, 1958 and the action done under the 1958 Act is deemed to be done under the 1971 Act. There is no vice of discrimination under the 1971 Act. There is only one procedure under the 1971word premises is defined to mean any land. Any land will include agricultural land. There is nothing in the Act to exclude the applicability of the Act to agricultural land. Reference was made to Sections 42 and 43 of the Punjab Tenancy Act, 1887. Section 42 of the 1887 Act speaks of restriction on ejectment. Section 43 provides for application to the Revenue Officer foris no substance in that contention. Section 15 of the 1971 Act provides only one procedure for ejectment of persons in unauthorised occupation of public premises.24. The 1958 Act has not been declared by this Court to be unconstitutonal. Sec. 5 of the 1959 Punjab Act was held by this Court in the decision in Northern India Caterers Private Ltd. case, (1967) 3 SCR 399 = (AIR 1967 SC 1581 ) (supra) to be an infraction of Article 14. Section 5 of the 1958 Central Act is in terms similar to section 5 of the 1959 Punjab Act. The arguments on behalf of the appellants therefore proceeded on the footing that the 1958 Act will be presumed to be unconstitutional. It was therefore, said that the 1971 Act could not validate actions done under the 1958 Act. The answer is for the reasons indicated above that the legislature was competent to enact this legislation in 1958 and the legislature by the 1971 Act has given the legislation full retrospective operation. The legislature has power to validate actions under an earlier Act by removing the infirmities of the earlier Act. The 1971 Act has achieved that object of validation.This Court said that if the Act is retrospective in operation and section 24 has been enacted for the purpose of retrospectively validating actions taken under the provisions of the earlier Act it must follow by the very retrospective operation of the relevant provisions that at the time when the impugned notification was issued, these provisions were in existence. That is the plain and obvious effect of the retrospective operation of the statute. Therefore in considering whether Article 31 (1) has been complied with or not, we must assume that before the notification was issued, the relevant provisions of the Act were in existence and so, Article 31 (1) must be held to have been complied with in that sense".15. In West Ramnad Electric Distribution Co. Ltd. case, (1963) 2 SCR 747 = (AIR 1962 SC 1753 ) (supra) this Court referred to the provisions of Article 20 of the Constitution to emphasise the instance where the Constitution prevented retrospective operation of any law. Accent was placed on the words "law in force at the time" occurring in Article 20. The words "by authority of law" in Article 31 (1) were distinguished from the words occurring in Article 20. This Court said that if subsequent law passed by the legislature was retrospective in operation, it would satisfy the requirement of Art.31 (1) and would validate the impugned notification in the West Ramnad Electric Distribution Co. Ltd. case (supra).
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I.J. Rao, Assistant Collector Of Customs & Ors Vs. Bibhuti Bhushan Bagh & Anr
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case to be set up by such person must indicate the damage or injury or hardship apprehended by such person. 16. In the present case, one possibility is that the person from whose possession the goods have been seized may want to establish the need for immediate possession, having regard to the nature or the goods and the critical conditions then prevailing in the market or that the goods are such as are required urgently to meet an emergency in relation to a vocational or private need, and that any delay in restoration would cause material damage or injury or hardship either by reason of some circumstance special to the person or of market conditions or of any particular quality of requirement for the presentation of the goods. But it will not be open to him to question whether the stage of the investigation, and the need for further investigation, call for an extension of time. It is impossible to conceive that a person from whose possession the goods have been seized with a view to confiscation should be entitled to know and to monitor, how the investigation against him is proceeding, the material collected against him at that stage, and what is the utility of pursuing the investigation further. These are matters of a confidential nature, knowledge of which such person is entitled to only upon the investigation being completed and a decision being taken to issue notice to show cause why the goods should not be confiscated. There can be no right in any person to be informed midway, during an investigation, of the material collected in the case against him. Consequently, while notice may be necessary to such person to show why time should not be extended he is not entitled to information as to the investigation which is in process. In such circumstances, the right of a persons, from whose possession the goods have been seized, to notice of the proposed extension must be conceded, but the opportunity open to him on such notice cannot extend to information concerning the nature and course of the investigation. 17. In that sense, the opportunity which the law can contemplate upon notice to him of the application for extension must be limited by the pragmatic necessities of the case. If these considerations are kept in mind, we have no doubt that notice must issue to the person from whose possession the goods have been seized of the proposal to extend the period of six months. In the normal course, notice must go to such person before the expiry of the original period of six months. It is true that the further period of six months contemplated as the maximum period of extension is a short period but Parliament has contemplated an original period of six months only and when it has fixed upon such period it must be assumed to have taken into consideration that the further detention of the goods can produce damage or injury or hardship to the person from whose possession the goods are seized. 18. We have said that notice must go to the person, from whose possession the goods have been seized, before the expiry of the original period of six months. It is possible that while notice is issued before the expiry of that period, service of such notice may not be issued effected on the person concerned in sufficient time to enable the Collector to make the order of extension before that period expires. Service of the notice may be postponed or delayed or rendered ineffective by reason of the person sought to be served attempting to avoid service of notice or for any other reason beyond the control of the customs authorities. In that event, it would be open to the Collector, if he finds that sufficient cause has been made out before him in that behalf to extend the time beyond the original period of six months, and thereafter, after notice has been served on the person concerned, to afford a post-decisional hearing to him in order to determine whether the order of extension should be cancelled or not. Having regard to the seriousness and the magnitude of injury to the public interest in the case of the illicit importation of goods, and having regard to considerations of the damage to economic policy underlying the formulation of import and export planning, it seems necessary to reconcile the need to afford an opportunity to the person affected with the larger consideration of public interest. 19. Our attention has been drawn to Ganeshmul Channilal Gandhi v. Collector of Central Excise and Asstt. Collector, Bangalore (AIR 1968 Mys 89 : 6 Law Rep 855) where the High Court of Mysore has held that no notice is necessary to the person from whose possession the goods are seized when the Collector proceeds to consider whether the original period of six months should be extended. Reliance has also been placed on Sheikh Mohammed Sayeed v. Assistant Collector of Customs for Preventive (I) (AIR 1970 Cal 134 ) which proceeds on the view that the Collector has to satisfy himself only subjectively on the point whether extension is called for. In Karsandas Pepatlal Dhineja v. Union of India ((1981) ELT 268), the High Court defined the implications of the use of the words "on sufficient cause being shown" in a statutory proceeding. None of these case convince us that the person from whose possession the goods have been seized is not entitled to notice of the proposal to extend the period. 20. In our opinion, the person from whose possession the goods have been seized is entitled to notice of the proposal before the Collector of Customs for the extension of the original period of six months mentioned in Section 110(2) of the Customs Act, and he is entitled to be heard upon such proposal but subject to the restrictions referred to earlier in regard to the need for maintaining confidentiality of the investigation proceedings. 21.
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1[ds]9. It is apparent that goods liable to confiscation may be seized by virtue of Section 110(1) but that those goods cannot be confiscated or penalty imposed without notice, opportunity to represent and to be heard to the owner of the goods or the person on whom penalty is proposed. This notice must be given within six months of the seizure of the goods, as envisaged by Section 110(2) of the Act, and if it is not, the goods must be returned to the person from whom the goods were seized. The proviso to Section 110 (2) of the Act allows the period of six months to be extended by the Collector of Customs for a period not exceeding six months on sufficient cause being shown to him in thatIn our opinion, the person from whose possession the goods have been seized is entitled to notice of the proposal before the Collector of Customs for the extension of the original period of six months mentioned in Section 110(2) of the Customs Act, and he is entitled to be heard upon such proposal but subject to the restrictions referred to earlier in regard to the need for maintaining confidentiality of the investigation proceedings
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case to be set up by such person must indicate the damage or injury or hardship apprehended by such person. 16. In the present case, one possibility is that the person from whose possession the goods have been seized may want to establish the need for immediate possession, having regard to the nature or the goods and the critical conditions then prevailing in the market or that the goods are such as are required urgently to meet an emergency in relation to a vocational or private need, and that any delay in restoration would cause material damage or injury or hardship either by reason of some circumstance special to the person or of market conditions or of any particular quality of requirement for the presentation of the goods. But it will not be open to him to question whether the stage of the investigation, and the need for further investigation, call for an extension of time. It is impossible to conceive that a person from whose possession the goods have been seized with a view to confiscation should be entitled to know and to monitor, how the investigation against him is proceeding, the material collected against him at that stage, and what is the utility of pursuing the investigation further. These are matters of a confidential nature, knowledge of which such person is entitled to only upon the investigation being completed and a decision being taken to issue notice to show cause why the goods should not be confiscated. There can be no right in any person to be informed midway, during an investigation, of the material collected in the case against him. Consequently, while notice may be necessary to such person to show why time should not be extended he is not entitled to information as to the investigation which is in process. In such circumstances, the right of a persons, from whose possession the goods have been seized, to notice of the proposed extension must be conceded, but the opportunity open to him on such notice cannot extend to information concerning the nature and course of the investigation. 17. In that sense, the opportunity which the law can contemplate upon notice to him of the application for extension must be limited by the pragmatic necessities of the case. If these considerations are kept in mind, we have no doubt that notice must issue to the person from whose possession the goods have been seized of the proposal to extend the period of six months. In the normal course, notice must go to such person before the expiry of the original period of six months. It is true that the further period of six months contemplated as the maximum period of extension is a short period but Parliament has contemplated an original period of six months only and when it has fixed upon such period it must be assumed to have taken into consideration that the further detention of the goods can produce damage or injury or hardship to the person from whose possession the goods are seized. 18. We have said that notice must go to the person, from whose possession the goods have been seized, before the expiry of the original period of six months. It is possible that while notice is issued before the expiry of that period, service of such notice may not be issued effected on the person concerned in sufficient time to enable the Collector to make the order of extension before that period expires. Service of the notice may be postponed or delayed or rendered ineffective by reason of the person sought to be served attempting to avoid service of notice or for any other reason beyond the control of the customs authorities. In that event, it would be open to the Collector, if he finds that sufficient cause has been made out before him in that behalf to extend the time beyond the original period of six months, and thereafter, after notice has been served on the person concerned, to afford a post-decisional hearing to him in order to determine whether the order of extension should be cancelled or not. Having regard to the seriousness and the magnitude of injury to the public interest in the case of the illicit importation of goods, and having regard to considerations of the damage to economic policy underlying the formulation of import and export planning, it seems necessary to reconcile the need to afford an opportunity to the person affected with the larger consideration of public interest. 19. Our attention has been drawn to Ganeshmul Channilal Gandhi v. Collector of Central Excise and Asstt. Collector, Bangalore (AIR 1968 Mys 89 : 6 Law Rep 855) where the High Court of Mysore has held that no notice is necessary to the person from whose possession the goods are seized when the Collector proceeds to consider whether the original period of six months should be extended. Reliance has also been placed on Sheikh Mohammed Sayeed v. Assistant Collector of Customs for Preventive (I) (AIR 1970 Cal 134 ) which proceeds on the view that the Collector has to satisfy himself only subjectively on the point whether extension is called for. In Karsandas Pepatlal Dhineja v. Union of India ((1981) ELT 268), the High Court defined the implications of the use of the words "on sufficient cause being shown" in a statutory proceeding. None of these case convince us that the person from whose possession the goods have been seized is not entitled to notice of the proposal to extend the period. 20. In our opinion, the person from whose possession the goods have been seized is entitled to notice of the proposal before the Collector of Customs for the extension of the original period of six months mentioned in Section 110(2) of the Customs Act, and he is entitled to be heard upon such proposal but subject to the restrictions referred to earlier in regard to the need for maintaining confidentiality of the investigation proceedings. 21.
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9. It is apparent that goods liable to confiscation may be seized by virtue of Section 110(1) but that those goods cannot be confiscated or penalty imposed without notice, opportunity to represent and to be heard to the owner of the goods or the person on whom penalty is proposed. This notice must be given within six months of the seizure of the goods, as envisaged by Section 110(2) of the Act, and if it is not, the goods must be returned to the person from whom the goods were seized. The proviso to Section 110 (2) of the Act allows the period of six months to be extended by the Collector of Customs for a period not exceeding six months on sufficient cause being shown to him in thatIn our opinion, the person from whose possession the goods have been seized is entitled to notice of the proposal before the Collector of Customs for the extension of the original period of six months mentioned in Section 110(2) of the Customs Act, and he is entitled to be heard upon such proposal but subject to the restrictions referred to earlier in regard to the need for maintaining confidentiality of the investigation proceedings
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MRS. KANIKA GOEL Vs. THE STATE OF DELHI THRU SHO
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to USA without any loss of time. Given the fact that the parties performed a civil marriage on 19th March, 2011 in the USA and cohabited in the native country and gave birth to minor child M who grew up in that environment for at least three years, coupled with the fact that the father and minor child M are US citizens and mother is a permanent resident of USA, the closest contact and jurisdiction is possibly that of the Circuit Court of Cook County, Illinois, USA. However, we may not be understood to have expressed any final opinion in this regard. At the same time, it is indisputable that the appellant and respondent No.2 first got married on 31 October, 2010 as per Sikh rites, i.e. Anand Karaj ceremony, and Hindu Vedic rites and that marriage was solemnised in New Delhi at which point of time the appellant was admittedly a citizen of India. Presently, she is only a Green Card holder (permanent resident) of the US. It is, therefore, debatable whether the Family Court at New Delhi, where the appellant has already filed a petition for dissolution of marriage, has jurisdiction in that behalf including to decide on the question of custody and guardianship in respect of the minor child M. For that reason, it may be appropriate that the said proceedings are decided with utmost promptitude in the first place before the appellant is called upon to appear before the US Court and including to produce the minor child M before that Court.26. It is not disputed that the appellant and minor child are presently in New Delhi and the appellant has no intention to return to her matrimonial home in the U.S.A. The appellant has apprehensions and serious reservations on account of her past experience in respect of which we do not think it necessary to dilate in this proceedings. That is a matter to be considered by the Court of Competent Jurisdiction called upon to decide the issue of dissolution of marriage and/or grant of custody of the minor child, as the case may be. For the time being, we may observe that the parties must eschew from pursuing parallel proceedings in two different countries. For, the first marriage between the parties was performed in New Delhi as per Anand Karaj Ceremony and Hindu Vedic rites on 31 October, 2010 and the petition for dissolution of marriage has been filed in New Delhi. Whereas, the civil marriage ceremony on 19March, 2011 at Circuit Court of Cook County, Illinois, USA, was performed to complete the formalities for facilitating the entry of the appellant into the US and to obtain US Permanent Resident status. It is appropriate that the proceedings pending in the Family Court at New Delhi are decided in the first place including on the question of jurisdiction of that Court. Depending on the outcome of the said proceedings, the parties will be free to pursue such other remedies as may be permissible in law before the Court of Competent Jurisdiction.27. As aforesaid, it is true that both respondent No.2 and also the minor child M are US citizens. The minor girl child has a US Passport and has travelled to India on a tenure Visa which has expired. That does not mean that she is in unlawful custody of her biological mother. Her custody with the appellant would nevertheless be lawful. The appellant has already instituted divorce proceedings in the Family Court at Patiala House, New Delhi. The respondent No.2 has also filed proceedings before the Court in the US for custody of the minor girl child, directing her return to her natural environment in the US. In such a situation, the arrangement directed by this Court in the case of Nithya Anand Raghavan (supra), as exposited in paragraphs 70-71, may be of some help to pass an appropriate order in the peculiar facts of this case, instead of directing the biological mother to return to the US along with the minor girl child, so as to appear before the competent court in the US. In that, the custody of the minor girl child M would remain with the appellant until she attains the age of majority or the Court of competent jurisdiction, trying the issue of custody of the minor child, orders to the contrary, with visitation and access rights to the biological father whenever he would visit India and in particular as delineated in the interim order passed by us reproduced in paragraph 11 (eleven) above.28. A fortiori, dependant on the outcome of the proceedings, before the Family Court at New Delhi, the appellant may then be legally obliged to participate in the proceedings before the US Court and must take all measures to effectively defend herself in the said proceedings by engaging solicitors of her choice in the USA to espouse her cause before the Circuit Court of Cook County, Illinois, USA. In that event, the respondent No.2 shall bear the cost of litigation and expenses to be incurred by the appellant to pursue the proceedings before the Courts in the native country. In addition, the respondent No.2 will bear the air fares or purchase the tickets for the travel of the appellant and the minor child M to the USA and including their return journey for India, as may be required. The respondent No.2 shall also make all suitable arrangements for the comfortable stay of the appellant and her companions at an independent place of her choice, at a reasonable cost. Further, the respondent No.2 shall not initiate any coercive/penal action against the appellant and if any such proceeding initiated by him in that regard is pending, the same shall be withdrawn and not pursued before the concerned Court any further. That will be the condition precedent to facilitate the appellant to appear before the Courts in the USA to effectively defend herself on all matters relating to the matrimonial dispute and including custody and guardianship of the minor child.29.
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1[ds]e shall first advert to the analysis made by the High Court in respect of the contentious issues. That can be discerned from paragraph 102 onwards of the impugned judgment. The High Court was conscious of the fact that it must first examine the issue regarding the welfare and best interest of the minor child. It noted that the minor girl child was about 3 years when the writ petition for habeas corpus was preferred on 1 February, 2017. It then noted that the respondent No.2 – father of the minor girl child had acquired citizenship of the USA in 2005 and holds an American Passport. He is living in the USA since 1994 and is thus domiciled in the USA. He had acquired a Bachelors? degree in Economics and obtained MBA qualification from the University of Chicago. He was an Education Software Entrepreneur. The appellant wife is the biological mother of the minor child M, who has acquired permanent resident status of the USA i.e. Green Card and had also applied for American citizenship on 2 December, 2016. The respondent No.2 and appellant were classmates during their schooling and revived their contacts in 2000. Eventually, they decided to get married and thereafter reside in USA where the respondent No.2 had his work place and home. The marriage was solemnized in New Delhi in India on 31 October, 2010 as per Anand Karaj ceremony, and Hindu Vedic rites in the presence of the elders of both the families. After the appellant arrived in USA, they performed civil marriage before the competent Court in USA on 19 March, 2011.16. The High Court adverted to the accomplishment of the appellant in her education and occupation. The High Court noted that the couple started their matrimonial life in the United States and lived as a couple in that country. They made the United States their home and their entire married life, except the duration during which they were on short visits to India, had been spent in the USA. They gave birth to a girl child M in USA on 15 February, 2014 at North Western Memorial Hospital, Chicago, Illinois, USA. The minor child M is a US citizen by birth and grew up there until she was clandestinely removed by the appellant to India on 25December, 2016. The minor child had, in fact, started attending pre-school in Chicago and had a full time schedule at school from August, 2016. Thus, the mental development of M while she was in USA till the end of 2016, had taken place to such an extent that she was very well aware and conscious of her surroundings. She was perceiving and absorbing from her surroundings and communicated not only with her parents, but also with her other relatives, her peers at the pre- school, her instructors, teachers and other care givers. The American way of life and systems were already in the process of being learnt and experienced by M when she came to India in December, 2016. The environment which M was experiencing during her growth was the natural environment of Chicago, USA. Both her parents were looking after her proper upbringing. The Court also noted that the paternal grandparents of the minor child M were visiting and interacting with her. The Court then adverted to the decisions in Surinder Kaur Sandhu Vs. Harbax Singh Sandhu andAviral Mittal Vs.Shilpa Aggarwal Vs. Aviral Mittal andDr. V. Ravi Chandran Vs. Union of India &and Nithya Anand Raghavan (supra), to opine that the Court in the US seemed to be the most appropriate Court to decide the issue of custody of M, considering that it had intimate contact with the parties and the child. It went on to observe that it was neither inclined nor in a position to undertake a detailed enquiry into aspects of custody, visitation and co-parenting of the minor child in the facts and circumstances of the case, considering all the events unfolded in, circumstances developed in and evidences were located in the USA. After having said this, it examined the compelling reasons disclosed by the appellant to dissuade the Court from issuing directions for return of M to her native country and the environment where she was born and being brought up. That analysis has been done in paragraph 114 onwards.After having said this, the High Court considered the argument of the appellant that she was the primary care giver qua M but disregarded the same by observing that that alone cannot be made the basis to reject the prayer for return of the minor girl child to her native country, and more so, when the minor girl child deserves love, affection and care of her father as well. The Court found that nothing prevents the appellant from returning to the USA if she so desires. Further, the fact that the minor girl child would make new friends and have new care givers and teachers in India at a new school, cannot be the basis to deny her the love and affection of her biological father or parenting of grandparents which was equally important for the grooming and upbringing of the child. The Court then went on to notice that the expression ?best interest of child? is wide in its connotation and cannot be limited only to love and care of the primary care giver i.e. the mother. It then adverted to the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, while making it clear that it was conscious of the fact that the said Act may not strictly apply to the case on hand for examining the issue of best interest of the child.r these decisions, it is not open to contend that the custody of the female minor child with her biological mother would be unlawful, for there is presumption to the contrary. In such a case, the High Court whilst exercising jurisdiction under Article 226 for issuance of a writ ofed not make any further enquiry but if it is called upon to consider the prayer for return of the minor female child to the native country, it has the option to resort to a summary inquiry or an elaborate inquiry, as may be necessary in the fact situation of the given case. In the present case, the High Court noted that it was not inclined to undertake a detailed inquiry. The question is, having said that whether the High Court took into account irrelevant matters for recording its conclusion that the minor female child, who was in custody of her biological mother, should be returned to her native country. As observed inNithya Anand Raghavan?s case(supra), the Court must take into account the totality of the facts and circumstances whilst ensuring the best interest of the minor child. In Prateek Gupta?s case (supra), the Court noted that the adjudicative mission is the obligation to secure the unreserved welfare of the child as the paramount consideration. Further, the doctrine of ?intimate and closest concern? are of persuasive relevance, only when the child is uprooted from its native country and taken to a place to encounter alien environment, language, custom etc. with the portent of mutilative bearing on the process of its overall growth and grooming. The High Court in the present case focused primarily on the grievances of the appellant and while rejecting those grievances, went on to grant relief to respondent No.2 by directing return of the minor girl child to her native country. On the totality of the facts and circumstances of the present case, in our opinion, there is nothing to indicate that the native language (English) is not spoken or the child has been divorced from the social customs to which she has been accustomed. Similarly, the minor child had just entered pre-school in the USA before she came to New Delhi along with her mother. In that sense, there was no disruption of her education or being subjected to a foreign system of education likely to psychologically disturb her. On the other hand, the minor child M is under the due care of her mother and maternal grand-parents and other relatives since her arrival in New Delhi. If she returns to US as per the relief claimed by the respondent No.2, she would inevitably be under the care of a Nanny as the respondent No.2 will be away during the day time for work and no one else from the family would be there at home to look after her. Placing her under a trained Nanny may not be harmful as such but it is certainly avoidable. For, there is likelihood of the minor child being psychologically disturbed after her separation from her mother, who is the primary care giver to her. In other words, there is no compelling reason to direct return of the minor child M to the US as prayed by the respondent No.2 nor is her stay in the company of her mother, along with maternal grand-parents and extended family at New Delhi, prejudicial to her in any manner, warranting her return to the US.23.As expounded in the recent decisions of this Court, the issue ought not to be decided on the basis of rights of the parties claiming custody of the minor child but the focus should constantly remain on whether the factum of best interest of the minor child is to return to the native country or otherwise. The fact that the minor child will have better prospects upon return to his/her native country, may be a relevant aspect in a substantive proceedings for grant of custody of the minor child but not decisive to examine the threshold issues in a habeas corpus petition. For the purpose of habeas corpus petition, the Court ought to focus on the obtaining circumstances of the minor child having been removed from the native country and taken to a place to encounter alien environment, language, custom etc. interfering with his/her overall growth and grooming and whether continuance there will be harmful. This has been the consistent view of this Court as restated in the recent three- Judge Bench decision inNithya Anand Raghavan (supra),and the two-Judge Bench decision in). It is unnecessary to multiply other decisions on the same aspect.24.In the present case, the minor child M is a US citizen by birth. She has grown up in her native country for over three years before she was brought to New Delhi by her biological mother (appellant) in December 2016. She had joined a pre- school in the USA. She had healthy bonding with her father (respondent No.2). Her paternal grand-parents used to visit her in the USA at some intervals. She was under the care of a Nanny during the day time, as her parents were working. Indeed, the work place of her father is near the home. The biological father (respondent No.2) of the minor child M has acquired US citizenship. Both father and mother of the minor child M were of Indian origin but domiciled in the USA after marriage. The mother (appellant) is a permanent resident of the USA-Green Card holder and has also applied for US citizenship. In her affidavit filed before the Delhi High Court datedNovember, 2017, she admits that her legal status was complicated as she has ceased to be an Indian citizen and her status of citizenship of the USA is in limbo.25.Be that as it may, the father filed a writ petition before the Delhi High Court for issuance of a writ of Habeas Corpus for production of the minor child and for directions for her return to USA without any loss of time. Given the fact that the parties performed a civil marriage onMarch, 2011 in the USA and cohabited in the native country and gave birth to minor child M who grew up in that environment for at least three years, coupled with the fact that the father and minor child M are US citizens and mother is a permanent resident of USA, the closest contact and jurisdiction is possibly that of the Circuit Court of Cook County, Illinois, USA. However, we may not be understood to have expressed any final opinion in this regard. At the same time, it is indisputable that the appellant and respondent No.2 first got married on 31October, 2010 as per Sikh rites, i.e. Anand Karaj ceremony, and Hindu Vedic rites and that marriage was solemnised in New Delhi at which point of time the appellant was admittedly a citizen of India. Presently, she is only a Green Card holder (permanent resident) of the US. It is, therefore, debatable whether the Family Court at New Delhi, where the appellant has already filed a petition for dissolution of marriage, has jurisdiction in that behalf including to decide on the question of custody and guardianship in respect of the minor child M. For that reason, it may be appropriate that the said proceedings are decided with utmost promptitude in the first place before the appellant is called upon to appear before the US Court and including to produce the minor child M before that Court.26.It is not disputed that the appellant and minor child are presently in New Delhi and the appellant has no intention to return to her matrimonial home in the U.S.A. The appellant has apprehensions and serious reservations on account of her past experience in respect of which we do not think itnecessary to dilate in this proceedings. That is a matter to be considered by the Court of Competent Jurisdiction called upon to decide the issue of dissolution of marriage and/or grant of custody of the minor child, as the case may be. For the time being, we may observe that the parties must eschew from pursuing parallel proceedings in two different countries. For, the first marriage between the parties was performed in New Delhi as per Anand Karaj Ceremony and Hindu Vedic rites on 31October, 2010 and the petition for dissolution of marriage has been filed in New Delhi. Whereas, the civil marriage ceremony on2011 at Circuit Court of Cook County, Illinois, USA, was performed to complete the formalities for facilitating the entry of the appellant into the US and to obtain US Permanent Resident status. It is appropriate that the proceedings pending in the Family Court at New Delhi are decided in the first place including on the question of jurisdiction of that Court. Depending on the outcome of the said proceedings, the parties will be free to pursue such other remedies as may be permissible in law before the Court of Competent Jurisdiction.27.As aforesaid, it is true that both respondent No.2 and also the minor child M are US citizens. The minor girl child has a US Passport and has travelled to India on a tenure Visa which has expired. That does not mean that she is in unlawful custody of her biological mother. Her custody with the appellant would nevertheless be lawful. The appellant has already instituted divorce proceedings in the Family Court at Patiala House, New Delhi. The respondent No.2 has also filed proceedings before the Court in the US for custody of the minor girl child, directing her return to her natural environment in the US. In such a situation, the arrangement directed by this Court in the case of Nithya Anand, as exposited in paragraphs 70-71, may be of some help to pass an appropriate order in the peculiar facts of this case, instead of directing the biological mother to return to the US along with the minor girl child, so as to appear before the competent court in the US. In that, the custody of the minor girl child M would remain with the appellant until she attains the age of majority or the Court of competent jurisdiction, trying the issue of custody of the minor child, orders to the contrary, with visitation and access rights to the biological father whenever he would visit India and in particular as delineated in the interim order passed by us reproduced in paragraph 11 (eleven) above.28., dependant on the outcome of the proceedings, before the Family Court at New Delhi, the appellant may then be legally obliged to participate in the proceedings before the US Court and must take all measures to effectively defend herself in the said proceedings by engaging solicitors of her choice in the USA to espouse her cause before the Circuit Court of Cook County, Illinois, USA. In that event, the respondent No.2 shall bear the cost of litigation and expenses to be incurred by the appellant to pursue the proceedings before the Courts in the native country. In addition, the respondent No.2 will bear the air fares or purchase the tickets for the travel of the appellant and the minor child M to the USA and including their return journey for India, as may be required. The respondent No.2 shall also make all suitable arrangements for the comfortable stay of the appellant and her companions at an independent place of her choice, at a reasonable cost. Further, the respondent No.2 shall not initiate any coercive/penal action against the appellant and if any such proceeding initiated by him in that regard is pending, the same shall be withdrawn and not pursued before the concerned Court any further. That will be the condition precedent to facilitate the appellant to appear before the Courts in the USA to effectively defend herself on all matters relating to the matrimonial dispute and including custody and guardianship of the minor child.
| 1 | 14,684 | 3,186 |
### 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:
to USA without any loss of time. Given the fact that the parties performed a civil marriage on 19th March, 2011 in the USA and cohabited in the native country and gave birth to minor child M who grew up in that environment for at least three years, coupled with the fact that the father and minor child M are US citizens and mother is a permanent resident of USA, the closest contact and jurisdiction is possibly that of the Circuit Court of Cook County, Illinois, USA. However, we may not be understood to have expressed any final opinion in this regard. At the same time, it is indisputable that the appellant and respondent No.2 first got married on 31 October, 2010 as per Sikh rites, i.e. Anand Karaj ceremony, and Hindu Vedic rites and that marriage was solemnised in New Delhi at which point of time the appellant was admittedly a citizen of India. Presently, she is only a Green Card holder (permanent resident) of the US. It is, therefore, debatable whether the Family Court at New Delhi, where the appellant has already filed a petition for dissolution of marriage, has jurisdiction in that behalf including to decide on the question of custody and guardianship in respect of the minor child M. For that reason, it may be appropriate that the said proceedings are decided with utmost promptitude in the first place before the appellant is called upon to appear before the US Court and including to produce the minor child M before that Court.26. It is not disputed that the appellant and minor child are presently in New Delhi and the appellant has no intention to return to her matrimonial home in the U.S.A. The appellant has apprehensions and serious reservations on account of her past experience in respect of which we do not think it necessary to dilate in this proceedings. That is a matter to be considered by the Court of Competent Jurisdiction called upon to decide the issue of dissolution of marriage and/or grant of custody of the minor child, as the case may be. For the time being, we may observe that the parties must eschew from pursuing parallel proceedings in two different countries. For, the first marriage between the parties was performed in New Delhi as per Anand Karaj Ceremony and Hindu Vedic rites on 31 October, 2010 and the petition for dissolution of marriage has been filed in New Delhi. Whereas, the civil marriage ceremony on 19March, 2011 at Circuit Court of Cook County, Illinois, USA, was performed to complete the formalities for facilitating the entry of the appellant into the US and to obtain US Permanent Resident status. It is appropriate that the proceedings pending in the Family Court at New Delhi are decided in the first place including on the question of jurisdiction of that Court. Depending on the outcome of the said proceedings, the parties will be free to pursue such other remedies as may be permissible in law before the Court of Competent Jurisdiction.27. As aforesaid, it is true that both respondent No.2 and also the minor child M are US citizens. The minor girl child has a US Passport and has travelled to India on a tenure Visa which has expired. That does not mean that she is in unlawful custody of her biological mother. Her custody with the appellant would nevertheless be lawful. The appellant has already instituted divorce proceedings in the Family Court at Patiala House, New Delhi. The respondent No.2 has also filed proceedings before the Court in the US for custody of the minor girl child, directing her return to her natural environment in the US. In such a situation, the arrangement directed by this Court in the case of Nithya Anand Raghavan (supra), as exposited in paragraphs 70-71, may be of some help to pass an appropriate order in the peculiar facts of this case, instead of directing the biological mother to return to the US along with the minor girl child, so as to appear before the competent court in the US. In that, the custody of the minor girl child M would remain with the appellant until she attains the age of majority or the Court of competent jurisdiction, trying the issue of custody of the minor child, orders to the contrary, with visitation and access rights to the biological father whenever he would visit India and in particular as delineated in the interim order passed by us reproduced in paragraph 11 (eleven) above.28. A fortiori, dependant on the outcome of the proceedings, before the Family Court at New Delhi, the appellant may then be legally obliged to participate in the proceedings before the US Court and must take all measures to effectively defend herself in the said proceedings by engaging solicitors of her choice in the USA to espouse her cause before the Circuit Court of Cook County, Illinois, USA. In that event, the respondent No.2 shall bear the cost of litigation and expenses to be incurred by the appellant to pursue the proceedings before the Courts in the native country. In addition, the respondent No.2 will bear the air fares or purchase the tickets for the travel of the appellant and the minor child M to the USA and including their return journey for India, as may be required. The respondent No.2 shall also make all suitable arrangements for the comfortable stay of the appellant and her companions at an independent place of her choice, at a reasonable cost. Further, the respondent No.2 shall not initiate any coercive/penal action against the appellant and if any such proceeding initiated by him in that regard is pending, the same shall be withdrawn and not pursued before the concerned Court any further. That will be the condition precedent to facilitate the appellant to appear before the Courts in the USA to effectively defend herself on all matters relating to the matrimonial dispute and including custody and guardianship of the minor child.29.
### Response:
1
### Explanation:
Corpus for production of the minor child and for directions for her return to USA without any loss of time. Given the fact that the parties performed a civil marriage onMarch, 2011 in the USA and cohabited in the native country and gave birth to minor child M who grew up in that environment for at least three years, coupled with the fact that the father and minor child M are US citizens and mother is a permanent resident of USA, the closest contact and jurisdiction is possibly that of the Circuit Court of Cook County, Illinois, USA. However, we may not be understood to have expressed any final opinion in this regard. At the same time, it is indisputable that the appellant and respondent No.2 first got married on 31October, 2010 as per Sikh rites, i.e. Anand Karaj ceremony, and Hindu Vedic rites and that marriage was solemnised in New Delhi at which point of time the appellant was admittedly a citizen of India. Presently, she is only a Green Card holder (permanent resident) of the US. It is, therefore, debatable whether the Family Court at New Delhi, where the appellant has already filed a petition for dissolution of marriage, has jurisdiction in that behalf including to decide on the question of custody and guardianship in respect of the minor child M. For that reason, it may be appropriate that the said proceedings are decided with utmost promptitude in the first place before the appellant is called upon to appear before the US Court and including to produce the minor child M before that Court.26.It is not disputed that the appellant and minor child are presently in New Delhi and the appellant has no intention to return to her matrimonial home in the U.S.A. The appellant has apprehensions and serious reservations on account of her past experience in respect of which we do not think itnecessary to dilate in this proceedings. That is a matter to be considered by the Court of Competent Jurisdiction called upon to decide the issue of dissolution of marriage and/or grant of custody of the minor child, as the case may be. For the time being, we may observe that the parties must eschew from pursuing parallel proceedings in two different countries. For, the first marriage between the parties was performed in New Delhi as per Anand Karaj Ceremony and Hindu Vedic rites on 31October, 2010 and the petition for dissolution of marriage has been filed in New Delhi. Whereas, the civil marriage ceremony on2011 at Circuit Court of Cook County, Illinois, USA, was performed to complete the formalities for facilitating the entry of the appellant into the US and to obtain US Permanent Resident status. It is appropriate that the proceedings pending in the Family Court at New Delhi are decided in the first place including on the question of jurisdiction of that Court. Depending on the outcome of the said proceedings, the parties will be free to pursue such other remedies as may be permissible in law before the Court of Competent Jurisdiction.27.As aforesaid, it is true that both respondent No.2 and also the minor child M are US citizens. The minor girl child has a US Passport and has travelled to India on a tenure Visa which has expired. That does not mean that she is in unlawful custody of her biological mother. Her custody with the appellant would nevertheless be lawful. The appellant has already instituted divorce proceedings in the Family Court at Patiala House, New Delhi. The respondent No.2 has also filed proceedings before the Court in the US for custody of the minor girl child, directing her return to her natural environment in the US. In such a situation, the arrangement directed by this Court in the case of Nithya Anand, as exposited in paragraphs 70-71, may be of some help to pass an appropriate order in the peculiar facts of this case, instead of directing the biological mother to return to the US along with the minor girl child, so as to appear before the competent court in the US. In that, the custody of the minor girl child M would remain with the appellant until she attains the age of majority or the Court of competent jurisdiction, trying the issue of custody of the minor child, orders to the contrary, with visitation and access rights to the biological father whenever he would visit India and in particular as delineated in the interim order passed by us reproduced in paragraph 11 (eleven) above.28., dependant on the outcome of the proceedings, before the Family Court at New Delhi, the appellant may then be legally obliged to participate in the proceedings before the US Court and must take all measures to effectively defend herself in the said proceedings by engaging solicitors of her choice in the USA to espouse her cause before the Circuit Court of Cook County, Illinois, USA. In that event, the respondent No.2 shall bear the cost of litigation and expenses to be incurred by the appellant to pursue the proceedings before the Courts in the native country. In addition, the respondent No.2 will bear the air fares or purchase the tickets for the travel of the appellant and the minor child M to the USA and including their return journey for India, as may be required. The respondent No.2 shall also make all suitable arrangements for the comfortable stay of the appellant and her companions at an independent place of her choice, at a reasonable cost. Further, the respondent No.2 shall not initiate any coercive/penal action against the appellant and if any such proceeding initiated by him in that regard is pending, the same shall be withdrawn and not pursued before the concerned Court any further. That will be the condition precedent to facilitate the appellant to appear before the Courts in the USA to effectively defend herself on all matters relating to the matrimonial dispute and including custody and guardianship of the minor child.
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V.C. K. Bus Service Ltd Vs. The Regional Transport Authority, Coimbatore
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it seems to me easier to imply a condition precedent defeating a contract before its execution has commenced than a condition subsequent defeating the contract when it is part performed."Thus, there is no legal obstacle to implying a condition that the renewal should stand cancelled if the right of the appellant to the original permit was negatived by the High Court.14. That brings us on to the question of fact, whether on an examination of the permit and of the circumstances under which it came to be granted, we can infer that it was the intention of the Regional Transport Authority to renew the permit subject to the result of the decision of the High Court in the appeal which was then pending before it. The permit granted to the V.C.K. Bus Service on 3rd December 1952 had been cancelled on 19th February 1953, and it was only by reason of the stay orders that the bus was permitted to run. When the appellant applied for renewal on 15th April 1954, there was opposition to the grant thereof from both the respondents herein, based on the decision of the Government dated 9th July 1953, and it was in view of their objection that the Regional Transport Authority renewed the permit for one year from 1st July 1954 to 30th June 1955. It is true that when the appellant applied again for renewal on 19th March 1955, the respondents did not raise objection thereto, but as the appeals in the High Court were still pending they had good reason to believe that the renewal would not affect whatever rights might be declared in their favour by the High Court. As all the papers relating to the grant of the original permit and the subsequent proceedings were part of the record before the Regional Transport Authority when he renewed the permit on 23rd June 1955, it is impossible to resist the conclusion that he really intended to renew the permit only subject to the decision of the High Court.15. It is of the utmost importance in this connection to bear in mind that the appellant applied not for a fresh permit but for a renewal and in sanctioning it, the Regional Transport Authority expressly acted in exercise of his powers under R. 134-A read with S.58 of the Act, and if he did not expressly provide that it was subject to the decision of the High Court, it must be because he must have considered that that was implicit in the fact of its being only a renewal. That that is how the appellant understood it is clear beyond doubt from the proceedings taken by it immediately after the High Court pronounced its judgment.16. But it is argued for the appellant on the strength of the decision in Veerappa Pillai v. Raman and Raman Ltd., 1952 S.C.R. 583: (A.I.R. 1952 S.C. 192) (E) that the mere knowledge on the part of the authorities that the rights of the parties were under litigation is not a sufficient ground to import a condition in the permit that it is subject to the result of that litigation, when in its terms it is unconditional. We do not read that decision as authority for any such broad contention. There, the question related to five permits, which had been originally granted to one Balasubramania Raman and Raman Ltd. obtained a transfer of the relative buses, and applied to the transport authorities for transfer of the permits to itself. Then Veerappa having subsequently obtained a transfer of the same buses from Balasubramania, applied to have the permits transferred in his name. On 3rd October 1944 he also instituted a suit in the Sub-Court, Kumbakonam, to establish his title to the buses against Raman and Raman Ltd., and that was decreed in his favour on 2nd May 1946. Raman and Raman Ltd., appealed against this decision to the Madras High Court, which by its judgment dated 2nd September 1949, reversed the decree of the Sub-Court, and held that it was entitled to the buses. While these proceedings were going on, the transport authorities suspended on 28th March 1944 the permits which had been granted to Balasubramaia and instead, they were issuing temporary-permits from time to time to Veerappa, who had been appointed receiver in the suit in the Sub-Court, Kumbakonam. On 29th March 1949 the Government decided to discontinue the policy of granting temporary permits indefinitely, and accordingly granted permanent permits to Veerappa. Then on 14th October 1949 Veerappa applied for renewal of these permanent permits, and that was granted by the Regional Transport Authority on 3rd January 1950. The question was whether this order was bad on the ground that it was inconsistent with the decision of the High Court that it was Ramon and Raman Ltd., that had obtained a valid title to the buses. This Court held that the ownership of the buses was only one of the factors to be taken into account in granting the permits, and that as the Regional Transport Authority granted the renewal on an appreciation of all the facts, his decision was not liable to be questioned in proceedings under Art. 226. It should be noted that the renewal which was granted on 3rd January 1950 was of permanent permits granted in pursuance of the order of the Government dated 29th March 1949, which had quite plainly declared as a matter of policy that notwithstanding the pendency of litigation between the parties, permanent permits should be granted to Veerappa. There can be no question of implying thereafter a condition that they were subject to the decision of the Court. Moreover, the renewal was granted on 3rd January 1950 after the litigation had ended on 2nd September 1949, and any attack on that order could only be by way of appeal against it, and that had been done. We are of opinion that the decision in 1952 S.C.R. 583: (A.I.R. 1952 S.C. 192) (E) is of no assistance to the appellant.
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1[ds]Thus, there is no legal obstacle to implying a condition that the renewal should stand cancelled if the right of the appellant to the original permit was negatived by the High Court.Court.15. It is of the utmost importance in this connection to bear in mind that the appellant applied not for a fresh permit but for a renewal and in sanctioning it, the Regional Transport Authority expressly acted in exercise of his powers under R. 134-A read with S.58 of the Act, and if he did not expressly provide that it was subject to the decision of the High Court, it must be because he must have considered that that was implicit in the fact of its being only a renewal. That that is how the appellant understood it is clear beyond doubt from the proceedings taken by it immediately after the High Court pronounced its judgment.But it is argued for the appellant on the strength of the decision in VeerappaPillai v. Raman and Raman Ltd., 1952 S.C.R. 583: (A.I.R. 1952 S.C. 192)(E) that the mere knowledge on the part of the authorities that the rights of the parties were under litigation is not a sufficient ground to import a condition in the permit that it is subject to the result of that litigation, when in its terms it is unconditional. We do not read that decision as authority for any such broad contention. There, the question related to five permits, which had been originally granted to one Balasubramania Raman and Raman Ltd. obtained a transfer of the relative buses, and applied to the transport authorities for transfer of the permits to itself. Then Veerappa having subsequently obtained a transfer of the same buses from Balasubramania, applied to have the permits transferred in his name. On 3rd October 1944 he also instituted a suit in the Sub-Court, Kumbakonam, to establish his title to the buses against Raman and Raman Ltd., and that was decreed in his favour on 2nd May 1946. Raman and Raman Ltd., appealed against this decision to the Madras High Court, which by its judgment dated 2nd September 1949, reversed the decree of the Sub-Court, and held that it was entitled to the buses. While these proceedings were going on, the transport authorities suspended on 28th March 1944 the permits which had been granted to Balasubramaia and instead, they were issuing temporary-permits from time to time to Veerappa, who had been appointed receiver in the suit in the Sub-Court, Kumbakonam. On 29th March 1949 the Government decided to discontinue the policy of granting temporary permits indefinitely, and accordingly granted permanent permits to Veerappa. Then on 14th October 1949 Veerappa applied for renewal of these permanent permits, and that was granted by the Regional Transport Authority on 3rd January 1950. The question was whether this order was bad on the ground that it was inconsistent with the decision of the High Court that it was Ramon and Raman Ltd., that had obtained a valid title to the buses. This Court held that the ownership of the buses was only one of the factors to be taken into account in granting the permits, and that as the Regional Transport Authority granted the renewal on an appreciation of all the facts, his decision was not liable to be questioned in proceedings under Art. 226. It should be noted that the renewal which was granted on 3rd January 1950 was of permanent permits granted in pursuance of the order of the Government dated 29th March 1949, which had quite plainly declared as a matter of policy that notwithstanding the pendency of litigation between the parties, permanent permits should be granted to Veerappa. There can be no question of implying thereafter a condition that they were subject to the decision of the Court. Moreover, the renewal was granted on 3rd January 1950 after the litigation had ended on 2nd September 1949, and any attack on that order could only be by way of appeal against it, and that had been done. We are of opinion that the decision in 1952 S.C.R. 583: (A.I.R. 1952 S.C. 192) (E) is of no assistance to the appellant.
| 1 | 5,335 | 760 |
### 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:
it seems to me easier to imply a condition precedent defeating a contract before its execution has commenced than a condition subsequent defeating the contract when it is part performed."Thus, there is no legal obstacle to implying a condition that the renewal should stand cancelled if the right of the appellant to the original permit was negatived by the High Court.14. That brings us on to the question of fact, whether on an examination of the permit and of the circumstances under which it came to be granted, we can infer that it was the intention of the Regional Transport Authority to renew the permit subject to the result of the decision of the High Court in the appeal which was then pending before it. The permit granted to the V.C.K. Bus Service on 3rd December 1952 had been cancelled on 19th February 1953, and it was only by reason of the stay orders that the bus was permitted to run. When the appellant applied for renewal on 15th April 1954, there was opposition to the grant thereof from both the respondents herein, based on the decision of the Government dated 9th July 1953, and it was in view of their objection that the Regional Transport Authority renewed the permit for one year from 1st July 1954 to 30th June 1955. It is true that when the appellant applied again for renewal on 19th March 1955, the respondents did not raise objection thereto, but as the appeals in the High Court were still pending they had good reason to believe that the renewal would not affect whatever rights might be declared in their favour by the High Court. As all the papers relating to the grant of the original permit and the subsequent proceedings were part of the record before the Regional Transport Authority when he renewed the permit on 23rd June 1955, it is impossible to resist the conclusion that he really intended to renew the permit only subject to the decision of the High Court.15. It is of the utmost importance in this connection to bear in mind that the appellant applied not for a fresh permit but for a renewal and in sanctioning it, the Regional Transport Authority expressly acted in exercise of his powers under R. 134-A read with S.58 of the Act, and if he did not expressly provide that it was subject to the decision of the High Court, it must be because he must have considered that that was implicit in the fact of its being only a renewal. That that is how the appellant understood it is clear beyond doubt from the proceedings taken by it immediately after the High Court pronounced its judgment.16. But it is argued for the appellant on the strength of the decision in Veerappa Pillai v. Raman and Raman Ltd., 1952 S.C.R. 583: (A.I.R. 1952 S.C. 192) (E) that the mere knowledge on the part of the authorities that the rights of the parties were under litigation is not a sufficient ground to import a condition in the permit that it is subject to the result of that litigation, when in its terms it is unconditional. We do not read that decision as authority for any such broad contention. There, the question related to five permits, which had been originally granted to one Balasubramania Raman and Raman Ltd. obtained a transfer of the relative buses, and applied to the transport authorities for transfer of the permits to itself. Then Veerappa having subsequently obtained a transfer of the same buses from Balasubramania, applied to have the permits transferred in his name. On 3rd October 1944 he also instituted a suit in the Sub-Court, Kumbakonam, to establish his title to the buses against Raman and Raman Ltd., and that was decreed in his favour on 2nd May 1946. Raman and Raman Ltd., appealed against this decision to the Madras High Court, which by its judgment dated 2nd September 1949, reversed the decree of the Sub-Court, and held that it was entitled to the buses. While these proceedings were going on, the transport authorities suspended on 28th March 1944 the permits which had been granted to Balasubramaia and instead, they were issuing temporary-permits from time to time to Veerappa, who had been appointed receiver in the suit in the Sub-Court, Kumbakonam. On 29th March 1949 the Government decided to discontinue the policy of granting temporary permits indefinitely, and accordingly granted permanent permits to Veerappa. Then on 14th October 1949 Veerappa applied for renewal of these permanent permits, and that was granted by the Regional Transport Authority on 3rd January 1950. The question was whether this order was bad on the ground that it was inconsistent with the decision of the High Court that it was Ramon and Raman Ltd., that had obtained a valid title to the buses. This Court held that the ownership of the buses was only one of the factors to be taken into account in granting the permits, and that as the Regional Transport Authority granted the renewal on an appreciation of all the facts, his decision was not liable to be questioned in proceedings under Art. 226. It should be noted that the renewal which was granted on 3rd January 1950 was of permanent permits granted in pursuance of the order of the Government dated 29th March 1949, which had quite plainly declared as a matter of policy that notwithstanding the pendency of litigation between the parties, permanent permits should be granted to Veerappa. There can be no question of implying thereafter a condition that they were subject to the decision of the Court. Moreover, the renewal was granted on 3rd January 1950 after the litigation had ended on 2nd September 1949, and any attack on that order could only be by way of appeal against it, and that had been done. We are of opinion that the decision in 1952 S.C.R. 583: (A.I.R. 1952 S.C. 192) (E) is of no assistance to the appellant.
### Response:
1
### Explanation:
Thus, there is no legal obstacle to implying a condition that the renewal should stand cancelled if the right of the appellant to the original permit was negatived by the High Court.Court.15. It is of the utmost importance in this connection to bear in mind that the appellant applied not for a fresh permit but for a renewal and in sanctioning it, the Regional Transport Authority expressly acted in exercise of his powers under R. 134-A read with S.58 of the Act, and if he did not expressly provide that it was subject to the decision of the High Court, it must be because he must have considered that that was implicit in the fact of its being only a renewal. That that is how the appellant understood it is clear beyond doubt from the proceedings taken by it immediately after the High Court pronounced its judgment.But it is argued for the appellant on the strength of the decision in VeerappaPillai v. Raman and Raman Ltd., 1952 S.C.R. 583: (A.I.R. 1952 S.C. 192)(E) that the mere knowledge on the part of the authorities that the rights of the parties were under litigation is not a sufficient ground to import a condition in the permit that it is subject to the result of that litigation, when in its terms it is unconditional. We do not read that decision as authority for any such broad contention. There, the question related to five permits, which had been originally granted to one Balasubramania Raman and Raman Ltd. obtained a transfer of the relative buses, and applied to the transport authorities for transfer of the permits to itself. Then Veerappa having subsequently obtained a transfer of the same buses from Balasubramania, applied to have the permits transferred in his name. On 3rd October 1944 he also instituted a suit in the Sub-Court, Kumbakonam, to establish his title to the buses against Raman and Raman Ltd., and that was decreed in his favour on 2nd May 1946. Raman and Raman Ltd., appealed against this decision to the Madras High Court, which by its judgment dated 2nd September 1949, reversed the decree of the Sub-Court, and held that it was entitled to the buses. While these proceedings were going on, the transport authorities suspended on 28th March 1944 the permits which had been granted to Balasubramaia and instead, they were issuing temporary-permits from time to time to Veerappa, who had been appointed receiver in the suit in the Sub-Court, Kumbakonam. On 29th March 1949 the Government decided to discontinue the policy of granting temporary permits indefinitely, and accordingly granted permanent permits to Veerappa. Then on 14th October 1949 Veerappa applied for renewal of these permanent permits, and that was granted by the Regional Transport Authority on 3rd January 1950. The question was whether this order was bad on the ground that it was inconsistent with the decision of the High Court that it was Ramon and Raman Ltd., that had obtained a valid title to the buses. This Court held that the ownership of the buses was only one of the factors to be taken into account in granting the permits, and that as the Regional Transport Authority granted the renewal on an appreciation of all the facts, his decision was not liable to be questioned in proceedings under Art. 226. It should be noted that the renewal which was granted on 3rd January 1950 was of permanent permits granted in pursuance of the order of the Government dated 29th March 1949, which had quite plainly declared as a matter of policy that notwithstanding the pendency of litigation between the parties, permanent permits should be granted to Veerappa. There can be no question of implying thereafter a condition that they were subject to the decision of the Court. Moreover, the renewal was granted on 3rd January 1950 after the litigation had ended on 2nd September 1949, and any attack on that order could only be by way of appeal against it, and that had been done. We are of opinion that the decision in 1952 S.C.R. 583: (A.I.R. 1952 S.C. 192) (E) is of no assistance to the appellant.
|
M/S.Alembic Glass Inds. Ltd Vs. Commissioner Of Cent.Excise
|
whom he had purchased and, notwithstanding the fact that the wholesale dealer might ultimately have the parts replaced by it reimbursed from the manufacturer, the service facilities were provided by the wholesaler with a view to earn goodwill and attract customers. The advertising of a product by the wholesaler was one of the well-known methods by which the wholesaler attracted customers and if, as a result of increasing its business, the demand for the product of the manufacturer also increased, the advertising by the manufacturer could not be said to be for and on behalf of the manufacturer. 3. In Union of India v. Mahindra and Mahindra Ltd. [(1989) 43 ELT 611 (Cal)] the High Court at Bombay emphasised the relationship between the parties, being of buyer and seller on principal-to-principal basis. The Court observed that the manufacturer and its distributor had a mutual interest in maximising the sale of the products. 4. The provisions in the contract between them relating to advertising and the like were in furtherance of this desire on the part of both the manufacturer and its distributor and in no way affected the real nature of the transaction which appeared to be of sale on principal-to-principal basis. 5. It seems to us clear that the advertisement which the dealer was required to make at its own cost benefited in equal degree the appellant and the dealer and that for this reason the cost of such advertisement was borne half and half by the appellant and the dealer. Making a deduction out of the trade discount on this account was, therefore, uncalled for. 6. As to the after-sales service that the dealer was required under the agreement to provide, it did of course enhance in the eyes of intending purchasers the value of the appellants product, but such enhancement of value enured not only for the benefit of the appellant; it also enured for the benefit of the dealer for, by reason thereof, the dealer got to sell more and earn a larger profit. The guarantee attached to the appellants products specified that they could be repaired during the guarantee period by the appellants dealers anywhere in the country. Thus, though one dealer might have to repair goods sold by another dealer and incur costs in that regard, he also had the benefit of having the goods he sold reparable throughout the country. The provision as to after-sales service, therefore, benefited not only the appellant; it was a provision of mutual benefit to the appellant and the dealer." 11. In that case it was noted that advertisement which the purchaser was required to make at its own cost benefited in equal degree the assessee and the purchaser and for that reason the cost of such advertisement was borne equally and making a deduction out of the trade discount was held to be uncalled for. It was pointed out that while adjudicating the matters such as this, the Excise Authorities would do well to keep in mind the legitimate business considerations. It is to be further noted that there is no material to show that there is no arrangement for reimbursement. The factual position shows that the transaction was on a principal to principal basis. The findings of this Court in A.K. Roy and Anr. v. Voltas Limited (1973 (3) SCC 503 ) also throw considerable light on the controversy. "20. There can be no doubt that the wholesale cash price has to be ascertained only on the basis of transactions at arms length. If there is a special or favoured buyer to whom a special low price is charged because of extra-commercial considerations, e.g. because he is relative of the manufacturer, the price charged for those sales would not be the wholesale cash price for levying excise under Section 4(a) of the Act. A sole distributor might or might not be a favoured buyer according as terms of the agreement with him are fair and reasonable and were arrived at on purely commercial basis. Once wholesale dealings at arms length are established, the determination of the wholesale cash price for the purpose of Section 4(a) of the Act may not depend upon the number of such wholesale dealings. The fact that the appellant sold 90 to 95 per cent. of the articles manufactured to consumers direct would not make the price of the wholesale sales of the rest of the articles any the less the wholesale cash price for the purpose Section 4(a), even if these sales were made pursuant to agreements stipulating for certain commercial advantages, provided the agreements were entered into at arms length and in the ordinary course of business. 21. Excise is a tax on the production and manufacture of goods (see Union of India v. Delhi Cloth and General Mills ([1963] Supp 1 SCR 586). Section 4 of the Act therefore provides that the real value should be found after deducting the selling cost and selling profit and that the real value can include only the manufacturing cost and the manufacturing profit. The section makes it clear that excise is levied only on the amount representing the manufacturing cost plus the manufacturing profit and excludes post-manufacturing cost and the profit arising from post-manufacturing operation, namely selling profit. The section postulates that the wholesale price should be taken on the basis of cash payment thus eliminating the interest involved in wholesale price which gives credit to the wholesale buyer for a period of time and that the price has to be fixed for delivery at the factory gate thereby eliminating freight, octroi and other charges involved in the transport of the articles. As already stated it is not necessary for attracting the operation of Section 4(a) that there should be a large number of wholesale sales. The quantum of goods sold by a manufacturer on wholesale basis is entirely irrelevant. The mere fact that such sales may be few or scanty does not alter the true position." 12. That being so, there
|
1[ds]In that case it was noted that advertisement which the purchaser was required to make at its own cost benefited in equal degree the assessee and the purchaser and for that reason the cost of such advertisement was borne equally and making a deduction out of the trade discount was held to be uncalled for. It was pointed out that while adjudicating the matters such as this, the Excise Authorities would do well to keep in mind the legitimate business considerations. It is to be further noted that there is no material to show that there is no arrangement for reimbursement. The factual position shows that the transaction was on a principal to principal basis. The findings of this Court in A.K. Roy and Anr. v. Voltas Limited (1973 (3) SCC 503 ) also throw considerable light on the controversy21. Excise is a tax on the production and manufacture of goods (see Union of India v. Delhi Cloth and General Mills ([1963] Supp 1 SCR 586). Section 4 of the Act therefore provides that the real value should be found after deducting the selling cost and selling profit and that the real value can include only the manufacturing cost and the manufacturing profit. The section makes it clear that excise is levied only on the amount representing the manufacturing cost plus the manufacturing profit and excludes post-manufacturing cost and the profit arising from post-manufacturing operation, namely selling profit. The section postulates that the wholesale price should be taken on the basis of cash payment thus eliminating the interest involved in wholesale price which gives credit to the wholesale buyer for a period of time and that the price has to be fixed for delivery at the factory gate thereby eliminating freight, octroi and other charges involved in the transport of the articles. As already stated it is not necessary for attracting the operation of Section 4(a) that there should be a large number of wholesale sales. The quantum of goods sold by a manufacturer on wholesale basis is entirely irrelevant. The mere fact that such sales may be few or scanty does not alter the true position."
| 1 | 3,288 | 390 |
### 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:
whom he had purchased and, notwithstanding the fact that the wholesale dealer might ultimately have the parts replaced by it reimbursed from the manufacturer, the service facilities were provided by the wholesaler with a view to earn goodwill and attract customers. The advertising of a product by the wholesaler was one of the well-known methods by which the wholesaler attracted customers and if, as a result of increasing its business, the demand for the product of the manufacturer also increased, the advertising by the manufacturer could not be said to be for and on behalf of the manufacturer. 3. In Union of India v. Mahindra and Mahindra Ltd. [(1989) 43 ELT 611 (Cal)] the High Court at Bombay emphasised the relationship between the parties, being of buyer and seller on principal-to-principal basis. The Court observed that the manufacturer and its distributor had a mutual interest in maximising the sale of the products. 4. The provisions in the contract between them relating to advertising and the like were in furtherance of this desire on the part of both the manufacturer and its distributor and in no way affected the real nature of the transaction which appeared to be of sale on principal-to-principal basis. 5. It seems to us clear that the advertisement which the dealer was required to make at its own cost benefited in equal degree the appellant and the dealer and that for this reason the cost of such advertisement was borne half and half by the appellant and the dealer. Making a deduction out of the trade discount on this account was, therefore, uncalled for. 6. As to the after-sales service that the dealer was required under the agreement to provide, it did of course enhance in the eyes of intending purchasers the value of the appellants product, but such enhancement of value enured not only for the benefit of the appellant; it also enured for the benefit of the dealer for, by reason thereof, the dealer got to sell more and earn a larger profit. The guarantee attached to the appellants products specified that they could be repaired during the guarantee period by the appellants dealers anywhere in the country. Thus, though one dealer might have to repair goods sold by another dealer and incur costs in that regard, he also had the benefit of having the goods he sold reparable throughout the country. The provision as to after-sales service, therefore, benefited not only the appellant; it was a provision of mutual benefit to the appellant and the dealer." 11. In that case it was noted that advertisement which the purchaser was required to make at its own cost benefited in equal degree the assessee and the purchaser and for that reason the cost of such advertisement was borne equally and making a deduction out of the trade discount was held to be uncalled for. It was pointed out that while adjudicating the matters such as this, the Excise Authorities would do well to keep in mind the legitimate business considerations. It is to be further noted that there is no material to show that there is no arrangement for reimbursement. The factual position shows that the transaction was on a principal to principal basis. The findings of this Court in A.K. Roy and Anr. v. Voltas Limited (1973 (3) SCC 503 ) also throw considerable light on the controversy. "20. There can be no doubt that the wholesale cash price has to be ascertained only on the basis of transactions at arms length. If there is a special or favoured buyer to whom a special low price is charged because of extra-commercial considerations, e.g. because he is relative of the manufacturer, the price charged for those sales would not be the wholesale cash price for levying excise under Section 4(a) of the Act. A sole distributor might or might not be a favoured buyer according as terms of the agreement with him are fair and reasonable and were arrived at on purely commercial basis. Once wholesale dealings at arms length are established, the determination of the wholesale cash price for the purpose of Section 4(a) of the Act may not depend upon the number of such wholesale dealings. The fact that the appellant sold 90 to 95 per cent. of the articles manufactured to consumers direct would not make the price of the wholesale sales of the rest of the articles any the less the wholesale cash price for the purpose Section 4(a), even if these sales were made pursuant to agreements stipulating for certain commercial advantages, provided the agreements were entered into at arms length and in the ordinary course of business. 21. Excise is a tax on the production and manufacture of goods (see Union of India v. Delhi Cloth and General Mills ([1963] Supp 1 SCR 586). Section 4 of the Act therefore provides that the real value should be found after deducting the selling cost and selling profit and that the real value can include only the manufacturing cost and the manufacturing profit. The section makes it clear that excise is levied only on the amount representing the manufacturing cost plus the manufacturing profit and excludes post-manufacturing cost and the profit arising from post-manufacturing operation, namely selling profit. The section postulates that the wholesale price should be taken on the basis of cash payment thus eliminating the interest involved in wholesale price which gives credit to the wholesale buyer for a period of time and that the price has to be fixed for delivery at the factory gate thereby eliminating freight, octroi and other charges involved in the transport of the articles. As already stated it is not necessary for attracting the operation of Section 4(a) that there should be a large number of wholesale sales. The quantum of goods sold by a manufacturer on wholesale basis is entirely irrelevant. The mere fact that such sales may be few or scanty does not alter the true position." 12. That being so, there
### Response:
1
### Explanation:
In that case it was noted that advertisement which the purchaser was required to make at its own cost benefited in equal degree the assessee and the purchaser and for that reason the cost of such advertisement was borne equally and making a deduction out of the trade discount was held to be uncalled for. It was pointed out that while adjudicating the matters such as this, the Excise Authorities would do well to keep in mind the legitimate business considerations. It is to be further noted that there is no material to show that there is no arrangement for reimbursement. The factual position shows that the transaction was on a principal to principal basis. The findings of this Court in A.K. Roy and Anr. v. Voltas Limited (1973 (3) SCC 503 ) also throw considerable light on the controversy21. Excise is a tax on the production and manufacture of goods (see Union of India v. Delhi Cloth and General Mills ([1963] Supp 1 SCR 586). Section 4 of the Act therefore provides that the real value should be found after deducting the selling cost and selling profit and that the real value can include only the manufacturing cost and the manufacturing profit. The section makes it clear that excise is levied only on the amount representing the manufacturing cost plus the manufacturing profit and excludes post-manufacturing cost and the profit arising from post-manufacturing operation, namely selling profit. The section postulates that the wholesale price should be taken on the basis of cash payment thus eliminating the interest involved in wholesale price which gives credit to the wholesale buyer for a period of time and that the price has to be fixed for delivery at the factory gate thereby eliminating freight, octroi and other charges involved in the transport of the articles. As already stated it is not necessary for attracting the operation of Section 4(a) that there should be a large number of wholesale sales. The quantum of goods sold by a manufacturer on wholesale basis is entirely irrelevant. The mere fact that such sales may be few or scanty does not alter the true position."
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Harinagar Cane Farm & Another Vs. State of Bihar & Others
|
competence of Mr. Sinha to appear for it, the appellant Motipur Zamindari Co., Ltd., stated before the Tribunal that the Sugar Mills Association of which Mr. Sinha happens to be an office bearer is connected with the industry in which the Zamindari Co., is engaged, and so. Mr. Sinha had a right to represent the management of the appellant in the proceedings before the Tribunal. In other words, it is significant that the appellant expressly admitted that it was a part of the industry, the Association of which had employed Mr. Sinha as its office bearer. Apart from this aspect, however, we have no hesitation in holding that the High Court was right in coming to the conclusion that the agricultural operations carried on by the two respective appellants are an industry under S. 2(j).10. Before we part with these appeals, we may refer to four decisions of this Court where this question has been considered. In D. N. Banerji v. P. R. Mukherjee, 1953 SCR 302 at p. 307: (AIR 1953 SC 58 at p. 60) this Court had occasion to examine the full significance and import of the words industry and industrial dispute as defined by S. 2(j) and (k) of the Act. It has been urged by the respondents that this decision supports their argument that S. 2(j) includes all agriculture and agricultural operations, and in support of this proposition, they have invited our attention to the statement in the judgment delivered by Chandrasekhara Aiyar J., where it is observed that the concept of industry in the ordinary non-technical sense applies even to agriculture horticulture, pisciculture and so on and so forth. We are not impressed by this argument. The context in which this sentence occurs shown that the Court was there dealing with the ordinary non-technical sense according to what is understood by the man in the street as the denotation of the word industry or business, and so, the observations made in that connection cannot be taken to amount to the broad and unqualified proposition that agriculture of all kinds is included in S. 2(j).The decision in that case was that disputes that might arise between municipalities and their employees in branches of work that can be said to be analogous to the carrying on of a trade or business, fall under S. 2(k) of the Act. It is in the light of this decision that the observations on which the respondents rely must be read.11. In the State of Bombay v. The Hospital Mazdoor Sabha (1960) 2 SCR 866 at p. 880: AIR 1960 SC 610 at p. 616) this Court has had occasion to examine elaborately the implications of the concept of industry as defined by S. 2(j). But it may be point out that one of the considerations which weighed with this Court in dealing with the dispute raised by the appellant in that case was that in the First Schedule to the Act which enumerates industries which may be declared as public utility service under S. 2(a) (vi), three entries had been added by Act 36 of 1956. One of these was services in hospitals and dispensaries, and so, it was clear that after the addition of the relevant entry in the First Schedule it would not have been open to anybody to suggest that service in hospital does not fall under S. 2(j).12. In The Ahmedabad Textile Industrys Research Association v. The State of Bombay, (1961) 2 SCR 480 : (AIR 1961 SC 484 ) this Court held that the activities of the Research Association amounted to an industry, because the manner in which the Association had been organised showed that the undertaking as a whole was in the nature of business and trade organised with the object of discovering ways and means by which member-mills may obtain larger profits in connection with their industries. In other words, though the work was one of research and in that sense of an intellectual type, it had been so organised as to form part of or a department of the textile industry itself. That is why it was held that the appellant in that case was an employer and his activity was an industrial activity within the meaning of S. 2(j).13. On the other hand, the decision in the case of National Union of Commercial Employees v. M. R. Mehar, Industrial Tribunal, Bombay (1962) 2 SCA 587 : (AIR 1962 SC 1080 ) was cited where this Court was called upon to consider whether the office of a solicitors firm was an employer and the work carried on in his office an industry under S. 2(j) : it was held that though the work of a solicitor is, in a loose sense, business, it could not be treated as an industry under S. 2(j) because the essential attribute of an industrial dispute was lacking in such a case; the essential basis of an industrial dispute, it was observed is that it is a dispute arising between capital and labour in enterprises where capital and labour combine to produce commodities or to render service and that could hardly be predicated about liberal profession like that of a Solicitor. A person following a liberal profession cannot be said to carry on his profession in any rational sense with the active co-operation of his employees, because it is well known that the man capital which a person following a liberal profession contributes is his special or peculiar intellectual and educational equipment. It is on these grounds that the Act was held to be inapplicable to a solicitors firm. We have referred to these decisions only to emphasise the point that this Court has consistently refrained from laying down unduly broad or categorical propositions in dealing with the somewhat difficult disputes which the definition contained in Section 2(j) raises before industrial adjudication. In the present case the dispute raised lies within a narrow compass and it is on that narrow basis that we have decided it.
|
0[ds]In D. N. Banerji v. P. R. Mukherjee, 1953 SCR 302 at p. 307: (AIR 1953 SC 58 at p. 60) this Court had occasion to examine the full significance and import of the words industry and industrial dispute as defined by S. 2(j) and (k) of the Act. It has been urged by the respondents that this decision supports their argument that S. 2(j) includes all agriculture and agricultural operations, and in support of this proposition, they have invited our attention to the statement in the judgment delivered by Chandrasekhara Aiyar J., where it is observed that the concept of industry in the ordinary non-technical sense applies even to agriculture horticulture, pisciculture and so on and so forth. We are not impressed by this argument. The context in which this sentence occurs shown that the Court was there dealing with the ordinary non-technical sense according to what is understood by the man in the street as the denotation of the word industry or business, and so, the observations made in that connection cannot be taken to amount to the broad and unqualified proposition that agriculture of all kinds is included in S. 2(j).The decision in that case was that disputes that might arise between municipalities and their employees in branches of work that can be said to be analogous to the carrying on of a trade or business, fall under S. 2(k) of the Act. It is in the light of this decision that the observations on which the respondents rely must be read.11. In the State of Bombay v. The Hospital Mazdoor Sabha (1960) 2 SCR 866 at p. 880: AIR 1960 SC 610 at p. 616) this Court has had occasion to examine elaborately the implications of the concept of industry as defined by S. 2(j). But it may be point out that one of the considerations which weighed with this Court in dealing with the dispute raised by the appellant in that case was that in the First Schedule to the Act which enumerates industries which may be declared as public utility service under S. 2(a) (vi), three entries had been added by Act 36 of 1956. One of these was services in hospitals and dispensaries, and so, it was clear that after the addition of the relevant entry in the First Schedule it would not have been open to anybody to suggest that service in hospital does not fall under S. 2(j).12. In The Ahmedabad Textile Industrys Research Association v. The State of Bombay, (1961) 2 SCR 480 : (AIR 1961 SC 484 ) this Court held that the activities of the Research Association amounted to an industry, because the manner in which the Association had been organised showed that the undertaking as a whole was in the nature of business and trade organised with the object of discovering ways and means by which member-mills may obtain larger profits in connection with their industries. In other words, though the work was one of research and in that sense of an intellectual type, it had been so organised as to form part of or a department of the textile industry itself. That is why it was held that the appellant in that case was an employer and his activity was an industrial activity within the meaning of S. 2(j).13. On the other hand, the decision in the case of National Union of Commercial Employees v. M. R. Mehar, Industrial Tribunal, Bombay (1962) 2 SCA 587 : (AIR 1962 SC 1080 ) was cited where this Court was called upon to consider whether the office of a solicitors firm was an employer and the work carried on in his office an industry under S. 2(j) : it was held that though the work of a solicitor is, in a loose sense, business, it could not be treated as an industry under S. 2(j) because the essential attribute of an industrial dispute was lacking in such a case; the essential basis of an industrial dispute, it was observed is that it is a dispute arising between capital and labour in enterprises where capital and labour combine to produce commodities or to render service and that could hardly be predicated about liberal profession like that of a Solicitor. A person following a liberal profession cannot be said to carry on his profession in any rational sense with the active co-operation of his employees, because it is well known that the man capital which a person following a liberal profession contributes is his special or peculiar intellectual and educational equipment. It is on these grounds that the Act was held to be inapplicable to a solicitors firm. We have referred to these decisions only to emphasise the point that this Court has consistently refrained from laying down unduly broad or categorical propositions in dealing with the somewhat difficult disputes which the definition contained in Section 2(j) raises before industrial adjudication. In the present case the dispute raised lies within a narrow compass and it is on that narrow basis that we have decided it.
| 0 | 3,454 | 943 |
### 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:
competence of Mr. Sinha to appear for it, the appellant Motipur Zamindari Co., Ltd., stated before the Tribunal that the Sugar Mills Association of which Mr. Sinha happens to be an office bearer is connected with the industry in which the Zamindari Co., is engaged, and so. Mr. Sinha had a right to represent the management of the appellant in the proceedings before the Tribunal. In other words, it is significant that the appellant expressly admitted that it was a part of the industry, the Association of which had employed Mr. Sinha as its office bearer. Apart from this aspect, however, we have no hesitation in holding that the High Court was right in coming to the conclusion that the agricultural operations carried on by the two respective appellants are an industry under S. 2(j).10. Before we part with these appeals, we may refer to four decisions of this Court where this question has been considered. In D. N. Banerji v. P. R. Mukherjee, 1953 SCR 302 at p. 307: (AIR 1953 SC 58 at p. 60) this Court had occasion to examine the full significance and import of the words industry and industrial dispute as defined by S. 2(j) and (k) of the Act. It has been urged by the respondents that this decision supports their argument that S. 2(j) includes all agriculture and agricultural operations, and in support of this proposition, they have invited our attention to the statement in the judgment delivered by Chandrasekhara Aiyar J., where it is observed that the concept of industry in the ordinary non-technical sense applies even to agriculture horticulture, pisciculture and so on and so forth. We are not impressed by this argument. The context in which this sentence occurs shown that the Court was there dealing with the ordinary non-technical sense according to what is understood by the man in the street as the denotation of the word industry or business, and so, the observations made in that connection cannot be taken to amount to the broad and unqualified proposition that agriculture of all kinds is included in S. 2(j).The decision in that case was that disputes that might arise between municipalities and their employees in branches of work that can be said to be analogous to the carrying on of a trade or business, fall under S. 2(k) of the Act. It is in the light of this decision that the observations on which the respondents rely must be read.11. In the State of Bombay v. The Hospital Mazdoor Sabha (1960) 2 SCR 866 at p. 880: AIR 1960 SC 610 at p. 616) this Court has had occasion to examine elaborately the implications of the concept of industry as defined by S. 2(j). But it may be point out that one of the considerations which weighed with this Court in dealing with the dispute raised by the appellant in that case was that in the First Schedule to the Act which enumerates industries which may be declared as public utility service under S. 2(a) (vi), three entries had been added by Act 36 of 1956. One of these was services in hospitals and dispensaries, and so, it was clear that after the addition of the relevant entry in the First Schedule it would not have been open to anybody to suggest that service in hospital does not fall under S. 2(j).12. In The Ahmedabad Textile Industrys Research Association v. The State of Bombay, (1961) 2 SCR 480 : (AIR 1961 SC 484 ) this Court held that the activities of the Research Association amounted to an industry, because the manner in which the Association had been organised showed that the undertaking as a whole was in the nature of business and trade organised with the object of discovering ways and means by which member-mills may obtain larger profits in connection with their industries. In other words, though the work was one of research and in that sense of an intellectual type, it had been so organised as to form part of or a department of the textile industry itself. That is why it was held that the appellant in that case was an employer and his activity was an industrial activity within the meaning of S. 2(j).13. On the other hand, the decision in the case of National Union of Commercial Employees v. M. R. Mehar, Industrial Tribunal, Bombay (1962) 2 SCA 587 : (AIR 1962 SC 1080 ) was cited where this Court was called upon to consider whether the office of a solicitors firm was an employer and the work carried on in his office an industry under S. 2(j) : it was held that though the work of a solicitor is, in a loose sense, business, it could not be treated as an industry under S. 2(j) because the essential attribute of an industrial dispute was lacking in such a case; the essential basis of an industrial dispute, it was observed is that it is a dispute arising between capital and labour in enterprises where capital and labour combine to produce commodities or to render service and that could hardly be predicated about liberal profession like that of a Solicitor. A person following a liberal profession cannot be said to carry on his profession in any rational sense with the active co-operation of his employees, because it is well known that the man capital which a person following a liberal profession contributes is his special or peculiar intellectual and educational equipment. It is on these grounds that the Act was held to be inapplicable to a solicitors firm. We have referred to these decisions only to emphasise the point that this Court has consistently refrained from laying down unduly broad or categorical propositions in dealing with the somewhat difficult disputes which the definition contained in Section 2(j) raises before industrial adjudication. In the present case the dispute raised lies within a narrow compass and it is on that narrow basis that we have decided it.
### Response:
0
### Explanation:
In D. N. Banerji v. P. R. Mukherjee, 1953 SCR 302 at p. 307: (AIR 1953 SC 58 at p. 60) this Court had occasion to examine the full significance and import of the words industry and industrial dispute as defined by S. 2(j) and (k) of the Act. It has been urged by the respondents that this decision supports their argument that S. 2(j) includes all agriculture and agricultural operations, and in support of this proposition, they have invited our attention to the statement in the judgment delivered by Chandrasekhara Aiyar J., where it is observed that the concept of industry in the ordinary non-technical sense applies even to agriculture horticulture, pisciculture and so on and so forth. We are not impressed by this argument. The context in which this sentence occurs shown that the Court was there dealing with the ordinary non-technical sense according to what is understood by the man in the street as the denotation of the word industry or business, and so, the observations made in that connection cannot be taken to amount to the broad and unqualified proposition that agriculture of all kinds is included in S. 2(j).The decision in that case was that disputes that might arise between municipalities and their employees in branches of work that can be said to be analogous to the carrying on of a trade or business, fall under S. 2(k) of the Act. It is in the light of this decision that the observations on which the respondents rely must be read.11. In the State of Bombay v. The Hospital Mazdoor Sabha (1960) 2 SCR 866 at p. 880: AIR 1960 SC 610 at p. 616) this Court has had occasion to examine elaborately the implications of the concept of industry as defined by S. 2(j). But it may be point out that one of the considerations which weighed with this Court in dealing with the dispute raised by the appellant in that case was that in the First Schedule to the Act which enumerates industries which may be declared as public utility service under S. 2(a) (vi), three entries had been added by Act 36 of 1956. One of these was services in hospitals and dispensaries, and so, it was clear that after the addition of the relevant entry in the First Schedule it would not have been open to anybody to suggest that service in hospital does not fall under S. 2(j).12. In The Ahmedabad Textile Industrys Research Association v. The State of Bombay, (1961) 2 SCR 480 : (AIR 1961 SC 484 ) this Court held that the activities of the Research Association amounted to an industry, because the manner in which the Association had been organised showed that the undertaking as a whole was in the nature of business and trade organised with the object of discovering ways and means by which member-mills may obtain larger profits in connection with their industries. In other words, though the work was one of research and in that sense of an intellectual type, it had been so organised as to form part of or a department of the textile industry itself. That is why it was held that the appellant in that case was an employer and his activity was an industrial activity within the meaning of S. 2(j).13. On the other hand, the decision in the case of National Union of Commercial Employees v. M. R. Mehar, Industrial Tribunal, Bombay (1962) 2 SCA 587 : (AIR 1962 SC 1080 ) was cited where this Court was called upon to consider whether the office of a solicitors firm was an employer and the work carried on in his office an industry under S. 2(j) : it was held that though the work of a solicitor is, in a loose sense, business, it could not be treated as an industry under S. 2(j) because the essential attribute of an industrial dispute was lacking in such a case; the essential basis of an industrial dispute, it was observed is that it is a dispute arising between capital and labour in enterprises where capital and labour combine to produce commodities or to render service and that could hardly be predicated about liberal profession like that of a Solicitor. A person following a liberal profession cannot be said to carry on his profession in any rational sense with the active co-operation of his employees, because it is well known that the man capital which a person following a liberal profession contributes is his special or peculiar intellectual and educational equipment. It is on these grounds that the Act was held to be inapplicable to a solicitors firm. We have referred to these decisions only to emphasise the point that this Court has consistently refrained from laying down unduly broad or categorical propositions in dealing with the somewhat difficult disputes which the definition contained in Section 2(j) raises before industrial adjudication. In the present case the dispute raised lies within a narrow compass and it is on that narrow basis that we have decided it.
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Harinarayan & Ors Vs. Union Of India & Another
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Government of India with effect from 17 July, 1942 under Rule 75 (A) of the Defence of India Rules. The Government was in possession of the property until the Government decided to acquire the property in the year 1953. The Central Government gave notice under S. 7 of the 1952 Act to acquire the property. The property was acquired in 1953.4. The Government thereafter offered to the appellants a sum of Rs. 2,47,990/- as a valuation of the property acquired. The appellants claimed Rs. 18,00,000/- as the valuation.Under Section 8 (1) of the 1952 Act the Government appointed the District Judge, Patna as the sole Arbitrator to determine the amount of compensation payable to the appellants in respect of the property. The Arbitrator held that in view of the provisions contained in sections 23 and 24 of the 1952 Act the provisions of section 8 (3) (b) of the 1952 Act would apply for determination of compensation payable for acquisition of the property.The appellants preferred an appeal against the award of the Arbitrator. Section 11 of the 1952 Act provided for such appeal.The High Court held that S. 8 (3) (b) of the 1952 Act applied and upheld the award of the Arbitrator.5. The question which falls for consideration in this appeal is whether the compensation would be determined under clause (a) or (b) of sub-sec. (3) of Section 8 of the 1952 Act. The relevant provisions are set out hereunder :"8 (3). The compensation payable for the acquisition of any property under section 7 shall be -(a) the price which the requisitioned property would have fetched in the open market, if it had remained in the same condition as it was at the time of requisitioning and been sold on the date of acquisition, or(b) twice the price which the requisitioned property would have fetched in the open market if it had been sold on the date of acquisition, whichever is less".Counsel for the appellants raised these contentions. The Defence of India Act, 1939 and the Rules made thereunder ceased to be effective on 14 February, 1946. There was no order of requisition under the 1952 Act. For the purpose of determination of compensation of the property under the 1952 Act the property could at best be held to be requisitioned when the 1952 Act came into existence. It was erroneous to treat the property to be requisitioned under the 1952 Act.6. The essence of the appellants contention is that the year of requisition should be 1952 when the 1952 Act came into effect. This contention is unsound. The requisitioned Land (Continuance of Powers) Ordinance, 1946 (Ordinance No. XIX of 1946) provided in Section 3 thereof that "notwithstanding the expiration of the Defence of India Act, 1939 and the Rules made thereunder, all requisitioned lands shall continue to be subject to requisition until the expiry of this Ordinance and the appropriate Government may use or deal with any requisitioned land in such manner as may appear to it to be expedient; provided that the appropriate Government may at any time release from requisition any requisitioned land". The property continued to be in possession of the Government under orders of requisition dated 17 July, 1942. The property was not released from requisition. It is manifest from Ordinance No. XIX of 1946 that the property which was requisitioned under the Defence of India Act continued to be subject of requisition in spite of the expiry of the Defence of India Act.Thereafter the Requisitioned Land (Continuance of Powers) Act, 1947 came in place of Ordinance No. XIX of 1946. The Requisitioning and Acquisition of Immovable Property Ordinance 1952 came into effect on repeal of the 1947 Act. Finally, the Requisitioning and Acquisition of Immovable Property Act, 1952 came into existence in place of the 1952 Ordinance. These various provisions and in particular Section 24 (2) of the 1952 Act show that the property became deemed to be property requisitioned under Section 3 of the Act. Just as Ordinance No. XIX of 1946 continued the acquisition of property, similarly the subsequent provisions under the 1947 Act, the 1952 Ordinance and eventually the 1952 Act continued the requisition.7. The power of acquire requisitioned property is to be found in section 7 of the 1952 Act. In view of the fact that the property was subject to requisition the Government desired to acquire the property in the year 1953. The property was acquired on 11 September, 1953 under the 1952 Act. The appellants became entitled to compensation under Section 8 of the 1952 Act. The two clauses (a) and (b) of section 8 (3) of the 1952 Act provide the alternative method for compensation for acquisition of property.In Union of India v. Kamlabhai Harjiwandas Parekh, (1968) 1 SCR 463 = (AIR 1968 SC 377 ) this Court held that the mode of determination of compensation prescribed in section 8 (3) (b) of the 1952 Act is arbitrary and bad. The result is that the award which was made in the present case pursuant to the provisions contained in S. 8 (3) (b) of the 1952 Act cannot be sustained. The appellants will therefore be entitled to compensation in accordance with the provisions contained in S. 8 (3) (b) of 1952 Act. it may be stated that in 1968 by an amendment clause (b) of Section 8 (3) of the 1952 Act was deleted. The 1968 Amendment has preserved clause (a) of Section 8 (3) of the 1952 Act by deleting cl. (a) and numbering it as sub-section (3) of section 8.Counsel on behalf of the Government contended that though S. 8 (3) (b) of the 1952 Act was applied by the Arbitrator, in substance the Arbitrator gave effect to the provisions of cl. (a) of Section 8 (3) of the 1952 Act .The award does not say so. On the contrary, the award is expressly made under the provisions of Section 8 (3) (b) of the 1952 Act. The contention of the Government therefore fails.
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1[ds]6. The essence of the appellants contention is that the year of requisition should be 1952 when the 1952 Act came intoeffect. This contention is unsound. The requisitioned Land (Continuance of Powers) Ordinance, 1946 (Ordinance No. XIX of 1946) provided in Section 3 thereof that "notwithstanding the expiration of the Defence of India Act, 1939 and the Rules made thereunder, all requisitioned lands shall continue to be subject to requisition until the expiry of this Ordinance and the appropriate Government may use or deal with any requisitioned land in such manner as may appear to it to be expedient; provided that the appropriate Government may at any time release from requisition any requisitioned land". The property continued to be in possession of the Government under orders of requisition dated 17 July, 1942. The property was not released from requisition. It is manifest from Ordinance No. XIX of 1946 that the property which was requisitioned under the Defence of India Act continued to be subject of requisition in spite of the expiry of the Defence of India Act.The power of acquire requisitioned property is to be found in section 7 of the 1952 Act. In view of the fact that the property was subject to requisition the Government desired to acquire the property in the year 1953. The property was acquired on 11 September, 1953 under the 1952 Act. The appellants became entitled to compensation under Section 8 of the 1952 Act. The two clauses (a) and (b) of section 8 (3) of the 1952 Act provide the alternative method for compensation for acquisition of property.In Union of India v. Kamlabhai Harjiwandas Parekh, (1968) 1 SCR 463 = (AIR 1968 SC 377 ) this Court held that the mode of determination of compensation prescribed in section 8 (3) (b) of the 1952 Act is arbitrary and bad. The result is that the award which was made in the present case pursuant to the provisions contained in S. 8 (3) (b) of the 1952 Act cannot be sustained. The appellants will therefore be entitled to compensation in accordance with the provisions contained in S. 8 (3) (b) of 1952 Act. it may be stated that in 1968 by an amendment clause (b) of Section 8 (3) of the 1952 Act was deleted. The 1968 Amendment has preserved clause (a) of Section 8 (3) of the 1952 Act by deleting cl. (a) and numbering it as(3) of section 8.Counselon behalf of the Government contended that though S. 8 (3) (b) of the 1952 Act was applied by the Arbitrator, in substance the Arbitrator gave effect to the provisions of cl. (a) of Section 8 (3) of the 1952 Actaward does not say so. On the contrary, the award is expressly made under the provisions of Section 8 (3) (b) of the 1952 Act. The contention of the Government therefore fails.
| 1 | 1,268 | 564 |
### 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:
Government of India with effect from 17 July, 1942 under Rule 75 (A) of the Defence of India Rules. The Government was in possession of the property until the Government decided to acquire the property in the year 1953. The Central Government gave notice under S. 7 of the 1952 Act to acquire the property. The property was acquired in 1953.4. The Government thereafter offered to the appellants a sum of Rs. 2,47,990/- as a valuation of the property acquired. The appellants claimed Rs. 18,00,000/- as the valuation.Under Section 8 (1) of the 1952 Act the Government appointed the District Judge, Patna as the sole Arbitrator to determine the amount of compensation payable to the appellants in respect of the property. The Arbitrator held that in view of the provisions contained in sections 23 and 24 of the 1952 Act the provisions of section 8 (3) (b) of the 1952 Act would apply for determination of compensation payable for acquisition of the property.The appellants preferred an appeal against the award of the Arbitrator. Section 11 of the 1952 Act provided for such appeal.The High Court held that S. 8 (3) (b) of the 1952 Act applied and upheld the award of the Arbitrator.5. The question which falls for consideration in this appeal is whether the compensation would be determined under clause (a) or (b) of sub-sec. (3) of Section 8 of the 1952 Act. The relevant provisions are set out hereunder :"8 (3). The compensation payable for the acquisition of any property under section 7 shall be -(a) the price which the requisitioned property would have fetched in the open market, if it had remained in the same condition as it was at the time of requisitioning and been sold on the date of acquisition, or(b) twice the price which the requisitioned property would have fetched in the open market if it had been sold on the date of acquisition, whichever is less".Counsel for the appellants raised these contentions. The Defence of India Act, 1939 and the Rules made thereunder ceased to be effective on 14 February, 1946. There was no order of requisition under the 1952 Act. For the purpose of determination of compensation of the property under the 1952 Act the property could at best be held to be requisitioned when the 1952 Act came into existence. It was erroneous to treat the property to be requisitioned under the 1952 Act.6. The essence of the appellants contention is that the year of requisition should be 1952 when the 1952 Act came into effect. This contention is unsound. The requisitioned Land (Continuance of Powers) Ordinance, 1946 (Ordinance No. XIX of 1946) provided in Section 3 thereof that "notwithstanding the expiration of the Defence of India Act, 1939 and the Rules made thereunder, all requisitioned lands shall continue to be subject to requisition until the expiry of this Ordinance and the appropriate Government may use or deal with any requisitioned land in such manner as may appear to it to be expedient; provided that the appropriate Government may at any time release from requisition any requisitioned land". The property continued to be in possession of the Government under orders of requisition dated 17 July, 1942. The property was not released from requisition. It is manifest from Ordinance No. XIX of 1946 that the property which was requisitioned under the Defence of India Act continued to be subject of requisition in spite of the expiry of the Defence of India Act.Thereafter the Requisitioned Land (Continuance of Powers) Act, 1947 came in place of Ordinance No. XIX of 1946. The Requisitioning and Acquisition of Immovable Property Ordinance 1952 came into effect on repeal of the 1947 Act. Finally, the Requisitioning and Acquisition of Immovable Property Act, 1952 came into existence in place of the 1952 Ordinance. These various provisions and in particular Section 24 (2) of the 1952 Act show that the property became deemed to be property requisitioned under Section 3 of the Act. Just as Ordinance No. XIX of 1946 continued the acquisition of property, similarly the subsequent provisions under the 1947 Act, the 1952 Ordinance and eventually the 1952 Act continued the requisition.7. The power of acquire requisitioned property is to be found in section 7 of the 1952 Act. In view of the fact that the property was subject to requisition the Government desired to acquire the property in the year 1953. The property was acquired on 11 September, 1953 under the 1952 Act. The appellants became entitled to compensation under Section 8 of the 1952 Act. The two clauses (a) and (b) of section 8 (3) of the 1952 Act provide the alternative method for compensation for acquisition of property.In Union of India v. Kamlabhai Harjiwandas Parekh, (1968) 1 SCR 463 = (AIR 1968 SC 377 ) this Court held that the mode of determination of compensation prescribed in section 8 (3) (b) of the 1952 Act is arbitrary and bad. The result is that the award which was made in the present case pursuant to the provisions contained in S. 8 (3) (b) of the 1952 Act cannot be sustained. The appellants will therefore be entitled to compensation in accordance with the provisions contained in S. 8 (3) (b) of 1952 Act. it may be stated that in 1968 by an amendment clause (b) of Section 8 (3) of the 1952 Act was deleted. The 1968 Amendment has preserved clause (a) of Section 8 (3) of the 1952 Act by deleting cl. (a) and numbering it as sub-section (3) of section 8.Counsel on behalf of the Government contended that though S. 8 (3) (b) of the 1952 Act was applied by the Arbitrator, in substance the Arbitrator gave effect to the provisions of cl. (a) of Section 8 (3) of the 1952 Act .The award does not say so. On the contrary, the award is expressly made under the provisions of Section 8 (3) (b) of the 1952 Act. The contention of the Government therefore fails.
### Response:
1
### Explanation:
6. The essence of the appellants contention is that the year of requisition should be 1952 when the 1952 Act came intoeffect. This contention is unsound. The requisitioned Land (Continuance of Powers) Ordinance, 1946 (Ordinance No. XIX of 1946) provided in Section 3 thereof that "notwithstanding the expiration of the Defence of India Act, 1939 and the Rules made thereunder, all requisitioned lands shall continue to be subject to requisition until the expiry of this Ordinance and the appropriate Government may use or deal with any requisitioned land in such manner as may appear to it to be expedient; provided that the appropriate Government may at any time release from requisition any requisitioned land". The property continued to be in possession of the Government under orders of requisition dated 17 July, 1942. The property was not released from requisition. It is manifest from Ordinance No. XIX of 1946 that the property which was requisitioned under the Defence of India Act continued to be subject of requisition in spite of the expiry of the Defence of India Act.The power of acquire requisitioned property is to be found in section 7 of the 1952 Act. In view of the fact that the property was subject to requisition the Government desired to acquire the property in the year 1953. The property was acquired on 11 September, 1953 under the 1952 Act. The appellants became entitled to compensation under Section 8 of the 1952 Act. The two clauses (a) and (b) of section 8 (3) of the 1952 Act provide the alternative method for compensation for acquisition of property.In Union of India v. Kamlabhai Harjiwandas Parekh, (1968) 1 SCR 463 = (AIR 1968 SC 377 ) this Court held that the mode of determination of compensation prescribed in section 8 (3) (b) of the 1952 Act is arbitrary and bad. The result is that the award which was made in the present case pursuant to the provisions contained in S. 8 (3) (b) of the 1952 Act cannot be sustained. The appellants will therefore be entitled to compensation in accordance with the provisions contained in S. 8 (3) (b) of 1952 Act. it may be stated that in 1968 by an amendment clause (b) of Section 8 (3) of the 1952 Act was deleted. The 1968 Amendment has preserved clause (a) of Section 8 (3) of the 1952 Act by deleting cl. (a) and numbering it as(3) of section 8.Counselon behalf of the Government contended that though S. 8 (3) (b) of the 1952 Act was applied by the Arbitrator, in substance the Arbitrator gave effect to the provisions of cl. (a) of Section 8 (3) of the 1952 Actaward does not say so. On the contrary, the award is expressly made under the provisions of Section 8 (3) (b) of the 1952 Act. The contention of the Government therefore fails.
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Patna Improvement Trust Vs. Smt. Lakshmi Devi & Others
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to the exclusion of the latter Act which was an Act dealing with acquisition of lands in general. Therefore the State Government had no. authority to take steps for acquisition of land for the purpose of the Improvement Trust under the general provisions of the Land Acquisition Act after the Bihar Act had come into force and the Improvement Trust had been constituted, and consequently the notifications of the State Government were ultra vires and illegal. It also held that the Improvement Trust was bound to follow the procedure expressly laid down in the Bihar Act for the object of carrying out its duties and it was not open to it to adopt any other machinery for the carrying out of those duties, the principle being that if a statute directs a statutory authority to exercise its power in a particular manner it must be exercised only in that manner and none other. The High Court also held that as under the Bihar Act the Improvement Trust is entitled to carry out its duties for which it has been constituted it cannot carry out development or expansion without preparing a master plan under S. 33 of the Act or without following the procedure under S. 42A of the Act this last section having been introduced into the Bihar Act by an Amending Act of 1956. 5. It is not necessary to go into the argument of inconsistency between the Bihar Act and the Land Acquisition Act or the special Act excluding the general because it appears to us that the various provisions of the Bihar Act themselves afford the key to the solution of the problem before us which is one of construction. Section 71 of the Bihar Act which modifies the Land Acquisition Act, itself states that for the purpose of acquisition of land for the Trust under the Land Acquisition Act that Act (Land Acquisition Act) shall be subject to the modification specified in the schedule. Therefore even for the purpose of acquiring land for the Trust the machinery of the Land Acquisition Act as modified is contemplated. It does not exclude the Land Acquisition Act, on the contrary it makes it applicable but subject to its modifications and exceptions. Now the first relevant modification is sub-cl. (1) of c. 2 of the Schedule. There a first notice under S. 46 of the Bihar Act is substituted for and has the same effect as a notification under S. 4(1) of the Land Acquisition Act but that is subject to an important exception and that exception is a notification under S. 4 (1) of the Land Acquisition Act or a declaration under S. 6 of that Act which "has been previously made and is in force". Thus when the exception applies the first notice under S. 46 of the Bihar Act has not that effect. The words "has been previously made" do not merely connote the issuing of a notification before the Bihar Act was passed but include all notifications before the Bihar Act was passed but include all notifications made prior or anterior to the first publication of a notice of an improvement scheme under S. 46. In other words if, before a notice under S. 46 has been published a notification under S. 4 (1) or a declaration under S. 6 of the Land Acquisition Act is made and is in force then the first publication of a notice under S. 46 would not be substituted for or have the same effect as a notification under S. 4(1). This construction is in accord with the construction placed by the Scottish courts in Mercer Hendersons Trustees v. Dunfermline District Committee, 37 SC LR 119 on similar words viz "previously in use". Lord Justice Clerk construed these words as not being equivalent to prior to the passing of a statute. That the power of the State Government to acquire land for the Trust is not taken away by the Bihar Act is further shown by S. 33 of that Act which deals with the preparation of a master plan of the Trust. Its relevant part is as follows :S. 33(3) "Subject to rules as may be prescribed for regulating the form and contents of master plan, a master plan shall include such maps and such descriptive matters as may be necessary to illustrate any proposal of schemes with such degree of details as may be appropriate to different parts of the areas, and any such master plan may in particular (a) ................ (b) Designate as land subject to compulsory acquisition by the State Government, the Trust, the planning authority appointed under S. 138 or any public utility agency any land allocated by the plan for the purpose of any of their functions." Thus the master plan has to designate the land which will be subject to compulsory acquisition by the various authorities therein mentioned including the State Government. 6. Again by clause 1 of the Schedule of the Bihar Act sub-s. (ee) is deemed to be inserted in S. 3 of the Land Acquisition Act and by that modification the expression "local authority" will include the Board of Trustees for the Improvement of a town constituted under S. 3 of the Bihar Act which means the Trust. Section 50(1) of the Land Acquisition Act relates to the employment of the provisions of the Land Acquisition Act for the purpose of acquiring land at the costs of any fund managed or controlled by a local authority or any company. Therefore S. 50(1) would be equally available for being put into force for the purpose of a Trust. This again shows that the intention of the legislature was not to exclude the functions of the Land Acquisition Act such as Ss. 4, 6, 50 etc. in the matter of acquisition of land for the purpose of a Trust. 7. The notification issued by the State Government is not therefore invalid and the High Court was in error in holding it otherwise.
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1[ds]5. It is not necessary to go into the argument of inconsistency between the Bihar Act and the Land Acquisition Act or the special Act excluding the general because it appears to us that the various provisions of the Bihar Act themselves afford the key to the solution of the problem before us which is one of construction. Section 71 of the Bihar Act which modifies the Land Acquisition Act, itself states that for the purpose of acquisition of land for the Trust under the Land Acquisition Act that Act (Land Acquisition Act) shall be subject to the modification specified in the schedule. Therefore even for the purpose of acquiring land for the Trust the machinery of the Land Acquisition Act as modified is contemplated. It does not exclude the Land Acquisition Act, on the contrary it makes it applicable but subject to its modifications and exceptions. Now the first relevant modification is sub-cl. (1) of c. 2 of the Schedule. There a first notice under S. 46 of the Bihar Act is substituted for and has the same effect as a notification under S. 4(1) of the Land Acquisition Act but that is subject to an important exception and that exception is a notification under S. 4 (1) of the Land Acquisition Act or a declaration under S. 6 of that Act which "has been previously made and is in force". Thus when the exception applies the first notice under S. 46 of the Bihar Act has not that effect. The words "has been previously made" do not merely connote the issuing of a notification before the Bihar Act was passed but include all notifications before the Bihar Act was passed but include all notifications made prior or anterior to the first publication of a notice of an improvement scheme under S. 46. In other words if, before a notice under S. 46 has been published a notification under S. 4 (1) or a declaration under S. 6 of the Land Acquisition Act is made and is in force then the first publication of a notice under S. 46 would not be substituted for or have the same effect as a notification under S. 4(1). This construction is in accord with the construction placed by the Scottish courts in Mercer Hendersons Trustees v. Dunfermline District Committee, 37 SC LR 119 on similar words viz "previously in use". Lord Justice Clerk construed these words as not being equivalent to prior to the passing of a statute. That the power of the State Government to acquire land for the Trust is not taken away by the Bihar Act is further shown by S. 33 of that Act which deals with the preparation of a master plan of the Trust6. Again by clause 1 of the Schedule of the Bihar Act sub-s. (ee) is deemed to be inserted in S. 3 of the Land Acquisition Act and by that modification the expression "local authority" will include the Board of Trustees for the Improvement of a town constituted under S. 3 of the Bihar Act which means the Trust. Section 50(1) of the Land Acquisition Act relates to the employment of the provisions of the Land Acquisition Act for the purpose of acquiring land at the costs of any fund managed or controlled by a local authority or any company. Therefore S. 50(1) would be equally available for being put into force for the purpose of a Trust. This again shows that the intention of the legislature was not to exclude the functions of the Land Acquisition Act such as Ss. 4, 6, 50 etc. in the matter of acquisition of land for the purpose of a Trust7. The notification issued by the State Government is not therefore invalid and the High Court was in error in holding it otherwise.
| 1 | 2,315 | 698 |
### 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 the exclusion of the latter Act which was an Act dealing with acquisition of lands in general. Therefore the State Government had no. authority to take steps for acquisition of land for the purpose of the Improvement Trust under the general provisions of the Land Acquisition Act after the Bihar Act had come into force and the Improvement Trust had been constituted, and consequently the notifications of the State Government were ultra vires and illegal. It also held that the Improvement Trust was bound to follow the procedure expressly laid down in the Bihar Act for the object of carrying out its duties and it was not open to it to adopt any other machinery for the carrying out of those duties, the principle being that if a statute directs a statutory authority to exercise its power in a particular manner it must be exercised only in that manner and none other. The High Court also held that as under the Bihar Act the Improvement Trust is entitled to carry out its duties for which it has been constituted it cannot carry out development or expansion without preparing a master plan under S. 33 of the Act or without following the procedure under S. 42A of the Act this last section having been introduced into the Bihar Act by an Amending Act of 1956. 5. It is not necessary to go into the argument of inconsistency between the Bihar Act and the Land Acquisition Act or the special Act excluding the general because it appears to us that the various provisions of the Bihar Act themselves afford the key to the solution of the problem before us which is one of construction. Section 71 of the Bihar Act which modifies the Land Acquisition Act, itself states that for the purpose of acquisition of land for the Trust under the Land Acquisition Act that Act (Land Acquisition Act) shall be subject to the modification specified in the schedule. Therefore even for the purpose of acquiring land for the Trust the machinery of the Land Acquisition Act as modified is contemplated. It does not exclude the Land Acquisition Act, on the contrary it makes it applicable but subject to its modifications and exceptions. Now the first relevant modification is sub-cl. (1) of c. 2 of the Schedule. There a first notice under S. 46 of the Bihar Act is substituted for and has the same effect as a notification under S. 4(1) of the Land Acquisition Act but that is subject to an important exception and that exception is a notification under S. 4 (1) of the Land Acquisition Act or a declaration under S. 6 of that Act which "has been previously made and is in force". Thus when the exception applies the first notice under S. 46 of the Bihar Act has not that effect. The words "has been previously made" do not merely connote the issuing of a notification before the Bihar Act was passed but include all notifications before the Bihar Act was passed but include all notifications made prior or anterior to the first publication of a notice of an improvement scheme under S. 46. In other words if, before a notice under S. 46 has been published a notification under S. 4 (1) or a declaration under S. 6 of the Land Acquisition Act is made and is in force then the first publication of a notice under S. 46 would not be substituted for or have the same effect as a notification under S. 4(1). This construction is in accord with the construction placed by the Scottish courts in Mercer Hendersons Trustees v. Dunfermline District Committee, 37 SC LR 119 on similar words viz "previously in use". Lord Justice Clerk construed these words as not being equivalent to prior to the passing of a statute. That the power of the State Government to acquire land for the Trust is not taken away by the Bihar Act is further shown by S. 33 of that Act which deals with the preparation of a master plan of the Trust. Its relevant part is as follows :S. 33(3) "Subject to rules as may be prescribed for regulating the form and contents of master plan, a master plan shall include such maps and such descriptive matters as may be necessary to illustrate any proposal of schemes with such degree of details as may be appropriate to different parts of the areas, and any such master plan may in particular (a) ................ (b) Designate as land subject to compulsory acquisition by the State Government, the Trust, the planning authority appointed under S. 138 or any public utility agency any land allocated by the plan for the purpose of any of their functions." Thus the master plan has to designate the land which will be subject to compulsory acquisition by the various authorities therein mentioned including the State Government. 6. Again by clause 1 of the Schedule of the Bihar Act sub-s. (ee) is deemed to be inserted in S. 3 of the Land Acquisition Act and by that modification the expression "local authority" will include the Board of Trustees for the Improvement of a town constituted under S. 3 of the Bihar Act which means the Trust. Section 50(1) of the Land Acquisition Act relates to the employment of the provisions of the Land Acquisition Act for the purpose of acquiring land at the costs of any fund managed or controlled by a local authority or any company. Therefore S. 50(1) would be equally available for being put into force for the purpose of a Trust. This again shows that the intention of the legislature was not to exclude the functions of the Land Acquisition Act such as Ss. 4, 6, 50 etc. in the matter of acquisition of land for the purpose of a Trust. 7. The notification issued by the State Government is not therefore invalid and the High Court was in error in holding it otherwise.
### Response:
1
### Explanation:
5. It is not necessary to go into the argument of inconsistency between the Bihar Act and the Land Acquisition Act or the special Act excluding the general because it appears to us that the various provisions of the Bihar Act themselves afford the key to the solution of the problem before us which is one of construction. Section 71 of the Bihar Act which modifies the Land Acquisition Act, itself states that for the purpose of acquisition of land for the Trust under the Land Acquisition Act that Act (Land Acquisition Act) shall be subject to the modification specified in the schedule. Therefore even for the purpose of acquiring land for the Trust the machinery of the Land Acquisition Act as modified is contemplated. It does not exclude the Land Acquisition Act, on the contrary it makes it applicable but subject to its modifications and exceptions. Now the first relevant modification is sub-cl. (1) of c. 2 of the Schedule. There a first notice under S. 46 of the Bihar Act is substituted for and has the same effect as a notification under S. 4(1) of the Land Acquisition Act but that is subject to an important exception and that exception is a notification under S. 4 (1) of the Land Acquisition Act or a declaration under S. 6 of that Act which "has been previously made and is in force". Thus when the exception applies the first notice under S. 46 of the Bihar Act has not that effect. The words "has been previously made" do not merely connote the issuing of a notification before the Bihar Act was passed but include all notifications before the Bihar Act was passed but include all notifications made prior or anterior to the first publication of a notice of an improvement scheme under S. 46. In other words if, before a notice under S. 46 has been published a notification under S. 4 (1) or a declaration under S. 6 of the Land Acquisition Act is made and is in force then the first publication of a notice under S. 46 would not be substituted for or have the same effect as a notification under S. 4(1). This construction is in accord with the construction placed by the Scottish courts in Mercer Hendersons Trustees v. Dunfermline District Committee, 37 SC LR 119 on similar words viz "previously in use". Lord Justice Clerk construed these words as not being equivalent to prior to the passing of a statute. That the power of the State Government to acquire land for the Trust is not taken away by the Bihar Act is further shown by S. 33 of that Act which deals with the preparation of a master plan of the Trust6. Again by clause 1 of the Schedule of the Bihar Act sub-s. (ee) is deemed to be inserted in S. 3 of the Land Acquisition Act and by that modification the expression "local authority" will include the Board of Trustees for the Improvement of a town constituted under S. 3 of the Bihar Act which means the Trust. Section 50(1) of the Land Acquisition Act relates to the employment of the provisions of the Land Acquisition Act for the purpose of acquiring land at the costs of any fund managed or controlled by a local authority or any company. Therefore S. 50(1) would be equally available for being put into force for the purpose of a Trust. This again shows that the intention of the legislature was not to exclude the functions of the Land Acquisition Act such as Ss. 4, 6, 50 etc. in the matter of acquisition of land for the purpose of a Trust7. The notification issued by the State Government is not therefore invalid and the High Court was in error in holding it otherwise.
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UNION OF INDIA (UOI) AND ANOTHER Vs. INTERNATIONAL TRADING CO. AND ANOTHER
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a given situation. The point to note is that the thing is not unreasonable in the legal sense merely because the Court thinks it to be unwise. 20. In Union of India and others Vs. Hindustan Development Corpn. and others, ; it was observed that decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public interest where the doctrine of legitimate expectation can be applied. If it is a question of policy, even by ways of change of old policy, the Courts cannot intervene with the decision. In a given case whether there are such facts and circumstance giving rise to legitimate expectation, would primarily be a question of fact. 21. As was observed in Punjab Communications Ltd. Vs. Union of India and Others, ; the change in policy can defeat a substantive legitimate expectation if it can be justified on Wednesbury reasonableness. The decision maker has the choice in the balancing of the pros and cons relevant to the change in policy. It is, therefore, clear that the choice of policy is for the decision maker and not the Court. The legitimate substantive expectation merely permits the Court to find out if the change of policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made. A claim based on merely legitimate extension without anything more cannot ipso facto give a right. Its uniqueness lies in the fact that it covers the entire span of time: present, past and future. How significant is the statement that today is tommorrows yesterday. The present is an we experience it, the past is a present memory and future is a present expectation. For legal purposes, expectation is not same anticipation. Legitimacy of an expectation can be inferred only if it is founded on the sanction of law. 22. As observed in Attorney General for New Southwale v. Quin 1990 (64) Aus LJR 327 to strike the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be to set the courts adrift on a featureless sea of pragmatism. Moreover, the negotiation of a legitimate expectation (falling short of a legal right) is too nebulous to form a basis for invalidating the exercise of a power when its exercise otherwise accords with law; If a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or biased gross abuse of power or violation of principles of natural justice, the same can be questioned on the well known grounds attracting Article 14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. It can be one of the grounds to consider, but the court must lift the veil and see whether the decision is violative of these principles warranting interference. It depends very much on the facts and the recognized general principles of administrative law applicable to such facts and the concept of legitimate expectation which is the latest recruit to a long list of concepts fashioned by the courts for the review of administrative action must be restricted to the general legal limitations applicable and binding the manner of the future exercise of administrative power in a particular case. It follows that the concept of legitimate expectation is not the key which unlocks the treasure of natural justice and it ought not to unlock the gates which shuts the court out of review on the merits, particularly, when the element of speculation and uncertainty is inherent in that very concept. As cautioned in Attorney General for New Southwales case the Court should restrain themselves and respect such claims duly to the legal limitations. It is a well-meant caution. Otherwise, a resourceful litigant having vested interest in contract, licences, etc. can successfully indulge in getting welfare activities mandated by directing principles thwarted to further his own interest. The caution, particularly in the changing scenario becomes all the more important. 23. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities and adopt trade policies. As noted above, the ultimate test is whether on the touchstone of reasonableness the policy decision comes out unscathed. 24. Reasonableness of restriction is to be determined in an objective manner and from the standpoint of interests of the general public and not from the standpoint of the interest of persons upon whom the restrictions have been imposed or upon abstract consideration. A restriction cannot be said to be unreasonable nearly because in a given case, it operates harshly. In determining whether there is any unfairness involved; the nature of the right alleged to have been infringed the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing condition at the relevant time, enter into judicial verdict. The reasonableness of the legitimate expectation has to be determined with respect to the circumstances relating to the trade or business in question. Cancalization of a particular business in favour of even a specified individual is reasonable where the interests of the country are concerned or where the business affects the economy of the country. (See The Parbhani Transport Co-operative Society Ltd. Vs. The Regional Transport Authority, Aurangabad and Others, , Shree Meenakshi Mills Ltd. Vs. Union of India (UOI), ; LaLa Hari Chand Sarda Vs. Mizo District Council and Another, and Krishnan Kakkanth Vs. Government of Kerala and ohters, . 25. As noted above, the appellants have relied upon the change in Government policy prescribing that there shall be no grant of renewal/extension for charter/lease permits. Learned Solicitor General has stated that if respondents apply in terms of prevailing EXIM policy, as was done by the affronted 32 vessels, due consideration in accordance with law shall be made.
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1[ds]Had it been so, and the matter would have been left open to be decided in accordance with law, there could have been no difficulty. But in view of the specific findings recorded by the Division Bench on several aspects more particularly policy being opposed to statute, and/or that the documents established entitlements for renewal, the exercise by the concerned authorities in dealing with the applications for renewal would amount to an empty formality. Further, 32 vessels to which reference has been made stood on entirely different footing. The vessels in question were imported under the prevailing policy of the Government and were registered by the Mercantile Maritime Department under the Merchant Shipping Act, 1958. The said vessels were not in any way connected with the cases at hand which relate to lease and charter permits. The aforesaid 32 vessels were imported as per EXIM policy of the Government. The said EXIM policy in the year 2000-2001 allowed import of deep sea fishing vessels by surrendering special import licence which had been done in the case of the concerned vessels and, therefore, the licences on those cases have no relevance so far as the present appeals are concerned. Even if it is conceded for the sake of argument that there was anything improper in the permission granted it may be ground for taking action against the concerned vessels, but it cannot be a ground to renew licence of the applicants.10. Though there can be quarrel with the proposition that renewal of a permit carries with it a valuable right, it cannot be lost sight of that for outweighing reasons of public interest renewal can be refused. It is not in dispute that licences have not been granted for a period of 15 years. If at the time when the matter is taken up for considering whether renewal to be granted, there is a change in policy; it cannot be said that the right is defeated by introduction of a policy. In such an event, the question of applying doctrine of legitimate expectation or promissory estoppel looses significance. It has not been disputed that in fact the policy decision exists. But the stand of the respondents is that it cannot outweigh the legitimate expectation or the unbuilt rights. Additionally it is submitted that the issue has to be considered in the background of 32 vessels referred to above.11. Rival contentions need to be cogitated.The case at hand shows that a conscious policy decision has been taken and there is no statutory compulsion to act contrary. In that context, it cannot be said that respondents have acquired any right for renewal. The High Court was not justified in observing that the policy decision was contrary to statute and for that reason direction for consideration of the application for renewal was necessary. Had the High Court not recorded any finding on the merits of respective stands, direction for consideration in accordance with law would have been proper and there would not have been any difficulty in accepting the plea of the learned counsel for the respondents. But having practically foreclosed any consideration by the findings recorded, consideration of the application would have been mere formality and grant of renewal would have been the inevitable result, though it may be against the policy decision. That renders the High Court judgment indefensible.As highlighted by learned counsel for the appellants, even if it is accepted that there was any improper permission, that may render such permissions vulnerable so far as 32 vessels are concerned. But it cannot come to the aid of respondents. It is not necessary to deal with that aspect because two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case; direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India, 1950 (in short the Constitution) cannot be pressed into service in such cases. What the concept of equal treatment presupposes is exis ence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs or par. Even if hypothetically it is accepted that wrong has been committed on some other cases by introducing a concept of negative equality respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality.15. It is (SIC) law that Article 14 of the Constitution applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional.16. While the discretion to change the policy in exercise of the executive power, when not trammelled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give impression that it was so done arbitrarily on by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the state, and non-arbitrariness in essence and substance is the heart beat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for a discernible reasons, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness.17. Where a particular mode is prescribed for doing an act and there is not impediment in adopting the procedure, the deviation to act in different manner which does not disclose any discernible principle which is reasonable itself shall be labelled as arbitrary. Every State action must be informed by reason and it follows that an act uninformed by reason is per se arbitrary.18. The courts as observed in G.B. Mahajan and others Vs. The Jalgaon Municipal Council and others, are kept out of lush field of administrative policy except where policy is inconsistent with the express or implied provision of a statute which creates the power to which the policy relates or where a decision made in purported exercise of power is such that a repository of the power acting reasonably and in good faith could not have made it. But there has to be a word of caution. Something overwhelming must appear before the Court will intervene. That is and ought to be a difficult onus for an applicant to discharge. The courts are not very good at formulating or evaluating policy. Sometimes when the Courts have intervened on policy grounds the Courts view of the range of policies open under the statute or of what is unreasonable policy has not got public acceptance. On the contrary, curial views of policy have been subjected to stringent criticism.20. In Union of India and others Vs. Hindustan Development Corpn. and others, ; it was observed that decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public interest where the doctrine of legitimate expectation can be applied. If it is a question of policy, even by ways of change of old policy, the Courts cannot intervene with the decision. In a given case whether there are such facts and circumstance giving rise to legitimate expectation, would primarily be a question of fact.24. Reasonableness of restriction is to be determined in an objective manner and from the standpoint of interests of the general public and not from the standpoint of the interest of persons upon whom the restrictions have been imposed or upon abstract consideration. A restriction cannot be said to be unreasonable nearly because in a given case, it operates harshly. In determining whether there is any unfairness involved; the nature of the right alleged to have been infringed the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing condition at the relevant time, enter into judicial verdict. The reasonableness of the legitimate expectation has to be determined with respect to the circumstances relating to the trade or business in question. Cancalization of a particular business in favour of even a specified individual is reasonable where the interests of the country are concerned or where the business affects the economy of the country. (See The Parbhani Transport Co-operative Society Ltd. Vs. The Regional Transport Authority, Aurangabad and Others, , Shree Meenakshi Mills Ltd. Vs. Union of India (UOI), ; LaLa Hari Chand Sarda Vs. Mizo District Council and Another, and Krishnan Kakkanth Vs. Government of Kerala and ohters, .25. As noted above, the appellants have relied upon the change in Government policy prescribing that there shall be no grant of renewal/extension for charter/lease permits. Learned Solicitor General has stated that if respondents apply in terms of prevailing EXIM policy, as was done by the affronted 32 vessels, due consideration in accordance with law shall be made.
| 1 | 3,927 | 1,753 |
### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
a given situation. The point to note is that the thing is not unreasonable in the legal sense merely because the Court thinks it to be unwise. 20. In Union of India and others Vs. Hindustan Development Corpn. and others, ; it was observed that decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public interest where the doctrine of legitimate expectation can be applied. If it is a question of policy, even by ways of change of old policy, the Courts cannot intervene with the decision. In a given case whether there are such facts and circumstance giving rise to legitimate expectation, would primarily be a question of fact. 21. As was observed in Punjab Communications Ltd. Vs. Union of India and Others, ; the change in policy can defeat a substantive legitimate expectation if it can be justified on Wednesbury reasonableness. The decision maker has the choice in the balancing of the pros and cons relevant to the change in policy. It is, therefore, clear that the choice of policy is for the decision maker and not the Court. The legitimate substantive expectation merely permits the Court to find out if the change of policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made. A claim based on merely legitimate extension without anything more cannot ipso facto give a right. Its uniqueness lies in the fact that it covers the entire span of time: present, past and future. How significant is the statement that today is tommorrows yesterday. The present is an we experience it, the past is a present memory and future is a present expectation. For legal purposes, expectation is not same anticipation. Legitimacy of an expectation can be inferred only if it is founded on the sanction of law. 22. As observed in Attorney General for New Southwale v. Quin 1990 (64) Aus LJR 327 to strike the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be to set the courts adrift on a featureless sea of pragmatism. Moreover, the negotiation of a legitimate expectation (falling short of a legal right) is too nebulous to form a basis for invalidating the exercise of a power when its exercise otherwise accords with law; If a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or biased gross abuse of power or violation of principles of natural justice, the same can be questioned on the well known grounds attracting Article 14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. It can be one of the grounds to consider, but the court must lift the veil and see whether the decision is violative of these principles warranting interference. It depends very much on the facts and the recognized general principles of administrative law applicable to such facts and the concept of legitimate expectation which is the latest recruit to a long list of concepts fashioned by the courts for the review of administrative action must be restricted to the general legal limitations applicable and binding the manner of the future exercise of administrative power in a particular case. It follows that the concept of legitimate expectation is not the key which unlocks the treasure of natural justice and it ought not to unlock the gates which shuts the court out of review on the merits, particularly, when the element of speculation and uncertainty is inherent in that very concept. As cautioned in Attorney General for New Southwales case the Court should restrain themselves and respect such claims duly to the legal limitations. It is a well-meant caution. Otherwise, a resourceful litigant having vested interest in contract, licences, etc. can successfully indulge in getting welfare activities mandated by directing principles thwarted to further his own interest. The caution, particularly in the changing scenario becomes all the more important. 23. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities and adopt trade policies. As noted above, the ultimate test is whether on the touchstone of reasonableness the policy decision comes out unscathed. 24. Reasonableness of restriction is to be determined in an objective manner and from the standpoint of interests of the general public and not from the standpoint of the interest of persons upon whom the restrictions have been imposed or upon abstract consideration. A restriction cannot be said to be unreasonable nearly because in a given case, it operates harshly. In determining whether there is any unfairness involved; the nature of the right alleged to have been infringed the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing condition at the relevant time, enter into judicial verdict. The reasonableness of the legitimate expectation has to be determined with respect to the circumstances relating to the trade or business in question. Cancalization of a particular business in favour of even a specified individual is reasonable where the interests of the country are concerned or where the business affects the economy of the country. (See The Parbhani Transport Co-operative Society Ltd. Vs. The Regional Transport Authority, Aurangabad and Others, , Shree Meenakshi Mills Ltd. Vs. Union of India (UOI), ; LaLa Hari Chand Sarda Vs. Mizo District Council and Another, and Krishnan Kakkanth Vs. Government of Kerala and ohters, . 25. As noted above, the appellants have relied upon the change in Government policy prescribing that there shall be no grant of renewal/extension for charter/lease permits. Learned Solicitor General has stated that if respondents apply in terms of prevailing EXIM policy, as was done by the affronted 32 vessels, due consideration in accordance with law shall be made.
### Response:
1
### Explanation:
right. A party cannot claim that since something wrong has been done in another case; direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India, 1950 (in short the Constitution) cannot be pressed into service in such cases. What the concept of equal treatment presupposes is exis ence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs or par. Even if hypothetically it is accepted that wrong has been committed on some other cases by introducing a concept of negative equality respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality.15. It is (SIC) law that Article 14 of the Constitution applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional.16. While the discretion to change the policy in exercise of the executive power, when not trammelled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give impression that it was so done arbitrarily on by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the state, and non-arbitrariness in essence and substance is the heart beat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for a discernible reasons, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness.17. Where a particular mode is prescribed for doing an act and there is not impediment in adopting the procedure, the deviation to act in different manner which does not disclose any discernible principle which is reasonable itself shall be labelled as arbitrary. Every State action must be informed by reason and it follows that an act uninformed by reason is per se arbitrary.18. The courts as observed in G.B. Mahajan and others Vs. The Jalgaon Municipal Council and others, are kept out of lush field of administrative policy except where policy is inconsistent with the express or implied provision of a statute which creates the power to which the policy relates or where a decision made in purported exercise of power is such that a repository of the power acting reasonably and in good faith could not have made it. But there has to be a word of caution. Something overwhelming must appear before the Court will intervene. That is and ought to be a difficult onus for an applicant to discharge. The courts are not very good at formulating or evaluating policy. Sometimes when the Courts have intervened on policy grounds the Courts view of the range of policies open under the statute or of what is unreasonable policy has not got public acceptance. On the contrary, curial views of policy have been subjected to stringent criticism.20. In Union of India and others Vs. Hindustan Development Corpn. and others, ; it was observed that decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public interest where the doctrine of legitimate expectation can be applied. If it is a question of policy, even by ways of change of old policy, the Courts cannot intervene with the decision. In a given case whether there are such facts and circumstance giving rise to legitimate expectation, would primarily be a question of fact.24. Reasonableness of restriction is to be determined in an objective manner and from the standpoint of interests of the general public and not from the standpoint of the interest of persons upon whom the restrictions have been imposed or upon abstract consideration. A restriction cannot be said to be unreasonable nearly because in a given case, it operates harshly. In determining whether there is any unfairness involved; the nature of the right alleged to have been infringed the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing condition at the relevant time, enter into judicial verdict. The reasonableness of the legitimate expectation has to be determined with respect to the circumstances relating to the trade or business in question. Cancalization of a particular business in favour of even a specified individual is reasonable where the interests of the country are concerned or where the business affects the economy of the country. (See The Parbhani Transport Co-operative Society Ltd. Vs. The Regional Transport Authority, Aurangabad and Others, , Shree Meenakshi Mills Ltd. Vs. Union of India (UOI), ; LaLa Hari Chand Sarda Vs. Mizo District Council and Another, and Krishnan Kakkanth Vs. Government of Kerala and ohters, .25. As noted above, the appellants have relied upon the change in Government policy prescribing that there shall be no grant of renewal/extension for charter/lease permits. Learned Solicitor General has stated that if respondents apply in terms of prevailing EXIM policy, as was done by the affronted 32 vessels, due consideration in accordance with law shall be made.
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Piare Lal Vs. Union of India & Others
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that the petition was heard by the High Court as if the two orders dated 28th October, 1966 had not been passed by the President and it was still necessary to examine the validity of the orders of promotion impugned in the petition. The appellant contended before the High Court that he was entitled as of right to be promoted to the Selection Grade post as also to the post of Deputy Inspector General of Police on the basis of seniority and the withholding of his promotion amounted to imposition of penalty which could not be done without following the procedure laid down in the All India Services (Discipline and Appeal) Rules, 1955. The appellant also urged before the High Court that the relevant criterion for making selections to the Selection Grade posts and to the posts of Deputy Inspector General of Police was not followed and the promotions made to these posts were, therefore, invalid. These contentions did not find favour with the High Court and by a judgment dated 9th August, 1967 the High Court dismissed the petition with costs. The appellant thereupon preferred the present appeal on certificate of fitness obtained from the High Court.7. When the appeal came up for hearing before us, the State of Punjab filed an affidavit made by H. S. Sekhon, Assistant Inspector General of Police on 2nd January, 1975. The Note of the Chief Secretary to the Government of Punjab, to which we have referred above, was annexed as annexure RA to this affidavit and it also carried the two orders dated 28th October, l966 as Annexures RB and RC. These two orders dated 28th October, l966 clearly showed that the orders of promotion impugned in the petition did not exist any more and the petition had become infructuous and futile. Faced with this situation, the appellant invited us to consider the validity of the two orders dated 28th October, 1966 and contended that they were invalid, since they were based on selections made in accordance with the new principle evolved by the Establishment Board, which principle was different from the one really applicable in the present case. The appellant urged that by reason of Rule 2 (b) of the All India Services (Conditions of Service - Residuary Matters) Rules, 1960, the selections to the Selection Grade posts as also to the posts of Deputy Inspector General of Police were regulated by the principle contained in the circular of the State Government dated 4th/l7th September, 1956 as clarified by the subsequent circulars of the State Government dated 28th June, 1961 and 8th/1lth September, 1961, Annexures RD, RE and RF to the affidavit of H. S. Sekhon, and since this principle had not been followed by the Establishment Board and the President in making the two orders dated 28th October, l966, these two orders were invalid. It was also contended on behalf of the appellant that he was entitled as of right to be promoted to the Selection Grade post as also to the post of Deputy Inspector General of Police merely on the basis of seniority and the two orders dated 28th October, 1966 promoting officers junior to him to these posts, therefore, amounted to withholding of promotion by way of penalty and that attracted the provisions of the All India Services (Discipline and Appeal) Rules, 1955. We do not think we can entertain these contentions urged on behalf of the appellant against the validity of the two orders dated 28th October, 1966, since there is no challenge to these two orders in the petition.The appellant could have very well amended the petition and challenged the validity of the two orders dated 28th October, l966 before the petition was heard and disposed of by the High Court, but the appellant failed to do so. The appellant did not care to apply for amendment of the petition even after the appeal was preferred in this Court and though the appeal remained pending in this Court for about seven years, no application for amendment to the petition was made on behalf of the appellant. It was only after the hearing of the appeal was concluded and when it was pointed out by us that the entire basis of the petition was knocked out by the making of the two orders dated 28th October, 1966 and no relief could be granted to the appellant unless those two orders were successfully impugned, that the appellant asked for time to move an application for amendment of the petition so as to include a challenge to the validity of those two orders. Obviously, we could not grant time for moving such an application for amendment at the stage at which it was sought to be moved. The two orders dated 28th October, 1966 could not be allowed to be challenged by an amendment of the petition more than eight years after the date when they were made. It is not possible to believe that the appellant was not aware of the making of these two orders and that he came to know of them for the first time when the affidavit dated 2nd January, 1975 was filed by H. S. Sekhon on behalf of the State Government. The appellant could have amended the petition earlier, at any rate during the long period of seven years when the appeal was pending in this Court, but the appellant was either lax or negligent. We cannot now, after the lapse of such a long time, and particularly after the hearing of the appeal is concluded, allow an amendment to the petition. It must follow a fortiori that, in the absence of challenge in the petition, we cannot examine the validity of the two orders dated 28th October, l966 and strike them down. We must, therefore, hold the petition to have become infructuous by reason of the making of the two orders dated 28th October, l966 and confirm the dismissal of the petition by the High Court, though for different reasons.
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0[ds]We do not think we can entertain these contentions urged on behalf of the appellant against the validity of the two orders dated 28th October, 1966, since there is no challenge to these two orders in the petition.The appellant could have very well amended the petition and challenged the validity of the two orders dated 28th October, l966 before the petition was heard and disposed of by the High Court, but the appellant failed to do so. The appellant did not care to apply for amendment of the petition even after the appeal was preferred in this Court and though the appeal remained pending in this Court for about seven years, no application for amendment to the petition was made on behalf of the appellant. It was only after the hearing of the appeal was concluded and when it was pointed out by us that the entire basis of the petition was knocked out by the making of the two orders dated 28th October, 1966 and no relief could be granted to the appellant unless those two orders were successfully impugned, that the appellant asked for time to move an application for amendment of the petition so as to include a challenge to the validity of those two orders. Obviously, we could not grant time for moving such an application for amendment at the stage at which it was sought to be moved. The two orders dated 28th October, 1966 could not be allowed to be challenged by an amendment of the petition more than eight years after the date when they were made. It is not possible to believe that the appellant was not aware of the making of these two orders and that he came to know of them for the first time when the affidavit dated 2nd January, 1975 was filed by H. S. Sekhon on behalf of the State Government. The appellant could have amended the petition earlier, at any rate during the long period of seven years when the appeal was pending in this Court, but the appellant was either lax or negligent. We cannot now, after the lapse of such a long time, and particularly after the hearing of the appeal is concluded, allow an amendment to the petition. It must follow a fortiori that, in the absence of challenge in the petition, we cannot examine the validity of the two orders dated 28th October, l966 and strike them down. We must, therefore, hold the petition to have become infructuous by reason of the making of the two orders dated 28th October, l966 and confirm the dismissal of the petition by the High Court, though for different reasons.
| 0 | 3,210 | 482 |
### 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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that the petition was heard by the High Court as if the two orders dated 28th October, 1966 had not been passed by the President and it was still necessary to examine the validity of the orders of promotion impugned in the petition. The appellant contended before the High Court that he was entitled as of right to be promoted to the Selection Grade post as also to the post of Deputy Inspector General of Police on the basis of seniority and the withholding of his promotion amounted to imposition of penalty which could not be done without following the procedure laid down in the All India Services (Discipline and Appeal) Rules, 1955. The appellant also urged before the High Court that the relevant criterion for making selections to the Selection Grade posts and to the posts of Deputy Inspector General of Police was not followed and the promotions made to these posts were, therefore, invalid. These contentions did not find favour with the High Court and by a judgment dated 9th August, 1967 the High Court dismissed the petition with costs. The appellant thereupon preferred the present appeal on certificate of fitness obtained from the High Court.7. When the appeal came up for hearing before us, the State of Punjab filed an affidavit made by H. S. Sekhon, Assistant Inspector General of Police on 2nd January, 1975. The Note of the Chief Secretary to the Government of Punjab, to which we have referred above, was annexed as annexure RA to this affidavit and it also carried the two orders dated 28th October, l966 as Annexures RB and RC. These two orders dated 28th October, l966 clearly showed that the orders of promotion impugned in the petition did not exist any more and the petition had become infructuous and futile. Faced with this situation, the appellant invited us to consider the validity of the two orders dated 28th October, 1966 and contended that they were invalid, since they were based on selections made in accordance with the new principle evolved by the Establishment Board, which principle was different from the one really applicable in the present case. The appellant urged that by reason of Rule 2 (b) of the All India Services (Conditions of Service - Residuary Matters) Rules, 1960, the selections to the Selection Grade posts as also to the posts of Deputy Inspector General of Police were regulated by the principle contained in the circular of the State Government dated 4th/l7th September, 1956 as clarified by the subsequent circulars of the State Government dated 28th June, 1961 and 8th/1lth September, 1961, Annexures RD, RE and RF to the affidavit of H. S. Sekhon, and since this principle had not been followed by the Establishment Board and the President in making the two orders dated 28th October, l966, these two orders were invalid. It was also contended on behalf of the appellant that he was entitled as of right to be promoted to the Selection Grade post as also to the post of Deputy Inspector General of Police merely on the basis of seniority and the two orders dated 28th October, 1966 promoting officers junior to him to these posts, therefore, amounted to withholding of promotion by way of penalty and that attracted the provisions of the All India Services (Discipline and Appeal) Rules, 1955. We do not think we can entertain these contentions urged on behalf of the appellant against the validity of the two orders dated 28th October, 1966, since there is no challenge to these two orders in the petition.The appellant could have very well amended the petition and challenged the validity of the two orders dated 28th October, l966 before the petition was heard and disposed of by the High Court, but the appellant failed to do so. The appellant did not care to apply for amendment of the petition even after the appeal was preferred in this Court and though the appeal remained pending in this Court for about seven years, no application for amendment to the petition was made on behalf of the appellant. It was only after the hearing of the appeal was concluded and when it was pointed out by us that the entire basis of the petition was knocked out by the making of the two orders dated 28th October, 1966 and no relief could be granted to the appellant unless those two orders were successfully impugned, that the appellant asked for time to move an application for amendment of the petition so as to include a challenge to the validity of those two orders. Obviously, we could not grant time for moving such an application for amendment at the stage at which it was sought to be moved. The two orders dated 28th October, 1966 could not be allowed to be challenged by an amendment of the petition more than eight years after the date when they were made. It is not possible to believe that the appellant was not aware of the making of these two orders and that he came to know of them for the first time when the affidavit dated 2nd January, 1975 was filed by H. S. Sekhon on behalf of the State Government. The appellant could have amended the petition earlier, at any rate during the long period of seven years when the appeal was pending in this Court, but the appellant was either lax or negligent. We cannot now, after the lapse of such a long time, and particularly after the hearing of the appeal is concluded, allow an amendment to the petition. It must follow a fortiori that, in the absence of challenge in the petition, we cannot examine the validity of the two orders dated 28th October, l966 and strike them down. We must, therefore, hold the petition to have become infructuous by reason of the making of the two orders dated 28th October, l966 and confirm the dismissal of the petition by the High Court, though for different reasons.
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We do not think we can entertain these contentions urged on behalf of the appellant against the validity of the two orders dated 28th October, 1966, since there is no challenge to these two orders in the petition.The appellant could have very well amended the petition and challenged the validity of the two orders dated 28th October, l966 before the petition was heard and disposed of by the High Court, but the appellant failed to do so. The appellant did not care to apply for amendment of the petition even after the appeal was preferred in this Court and though the appeal remained pending in this Court for about seven years, no application for amendment to the petition was made on behalf of the appellant. It was only after the hearing of the appeal was concluded and when it was pointed out by us that the entire basis of the petition was knocked out by the making of the two orders dated 28th October, 1966 and no relief could be granted to the appellant unless those two orders were successfully impugned, that the appellant asked for time to move an application for amendment of the petition so as to include a challenge to the validity of those two orders. Obviously, we could not grant time for moving such an application for amendment at the stage at which it was sought to be moved. The two orders dated 28th October, 1966 could not be allowed to be challenged by an amendment of the petition more than eight years after the date when they were made. It is not possible to believe that the appellant was not aware of the making of these two orders and that he came to know of them for the first time when the affidavit dated 2nd January, 1975 was filed by H. S. Sekhon on behalf of the State Government. The appellant could have amended the petition earlier, at any rate during the long period of seven years when the appeal was pending in this Court, but the appellant was either lax or negligent. We cannot now, after the lapse of such a long time, and particularly after the hearing of the appeal is concluded, allow an amendment to the petition. It must follow a fortiori that, in the absence of challenge in the petition, we cannot examine the validity of the two orders dated 28th October, l966 and strike them down. We must, therefore, hold the petition to have become infructuous by reason of the making of the two orders dated 28th October, l966 and confirm the dismissal of the petition by the High Court, though for different reasons.
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Patel Narshi Thakershi & Others Vs. Shri Pradyumansinghji Arjunsinghji
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The Tribunal by its order dated January 28, 1954 remanded the matters to the Special Mamlatdar for further enquiry in accordance with the directions given by it. The Special Mamlatdar recorded further evidence and by his order dated October 19, 1954 he again held that the family was joint. The girasdars did not appeal against that order within the time prescribed. But on September 4, 1956, they filed applications to the Saurashtra Government under sub-section (2) of Section 63 of the Act to set aside the orders of the Special Mamlatdar and the Deputy Collector. These applications were accepted by the Government on October 22, 1956. The Government set aside the orders of the Special Mamlatdar and the Deputy Collector and remanded the cases to Mahalkari, Kotdasanghani to rehear and decide the cases on merits. At this stage it may be noted that by the time the Government came to make those orders the office of the Special Mamlatdar had been abolished and his jurisdiction had been transferred to Mahalkari, Kotdasanghani. The Mahalkari by his order dated December 21, 1957 held that the family had separated and that the girasdars were entitled to separate gharkheds. After this order was passed Jesang, the uncle of the respondent appears to have settled his dispute with his tenants and the order made by Mahalkari in his petition became final. But in the applications made by his nephews, the tenants appealed to the District Deputy Collector but their appeal was rejected by him on February 25, 1958. Against that order the matter was taken up in revision by the tenants to the Tribunal. The Tribunal by its order dated April 29, 1958 rejected the revision application taking the view that it had no jurisdiction to entertain them as the matter had earlier been considered by the State Government. Thereafter on May 24, 1958, the tenants filed a revision petition to the State Government of Bombay as the State of Saurashtra had been merged in the State of Bombay by that time. The Bombay Government sent down that revision petition to the Commissioner, Rajkot Division to hear the parties and to submit a report. The petition was heard by Mr. Shunglu who was the Commissioner of Rajkot Division at that time. On November 10, 1958 he reported to the State Government recommending that the order made by the Mahalkari on December 21, 1957 and by the District Deputy Collector on February 25, 1958 should be set aside as they were wrong on merits. The State Government agreed with the recommendation and directed the Commissioner, Rajkot Division to call upon the girasdars to show cause why the two orders in question should not be cancelled. After the receipt of that order Mr. Monani, the then Commissioner heard the parties and recommended to the Government on September 28, 1958 to set aside the orders in question as in his opinion the order made by the Saurashtra Government on October 22, 1956 was made without the authority of law. But by the time this recommendation came to be considered by the State Government, the State of Gujarat of which the territory of the former State of Saurashtra is a part had come into existence. The Gujarat Government by its notification dated July 19, 1960 delegated its functions under Section 63 of the Act to the Commissioners. Therefore the recommendation of Mr. Monani came back to the Commissioner, Rajkot Division for passing a suitable order. Hence Mr. Mankodi, the then Commissioner of Rajkot, took up the matter for consideration. He by his order dated March 29, 1962, set aside the order passed by the Saurashtra Government on October 22, 1956 taking the view that the Government had no competence to make that order.3. The order of Mr. Mankodi was challenged before the High Court of Gujarat by means of writ petition under Articles 226 and 227 of the Constitution. The High Court has set aside that order taking the view that Mr. Mankodi was not right in his conclusion that the State Government could not have passed the order which it passed on October 22, 1956, under Section 63 (2) of the Act. It also quashed the order made by the Revenue Tribunal on April 29, 1958. Further it directed the Gujarat Revenue Tribunal to dispose of the matter in accordance with law. As against that order this appeal has been brought on the strength of the certificate issued by the Gujarat High Court.4. The first question that we have to consider is whether Mr. Mankodi had competence to quash the order made by the Saurashtra Government on October 22, 1956. It must be remembered that Mr. Mankodi was functioning as the delegate of the State Government. The order passed by Mr. Mankodi, in law amounted to a review of the order made by Saurashtra Government.It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to our notice from which it could be gathered that the Government had power to review its own order. If the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order.The question whether the Governments order is correct or valid in law does not arise for consideration in these proceedings so long as that order is not set aside or declared void by a competent authority. Hence the same cannot be ignored. The Subordinate Tribunals have to carry out that order. For this reason alone the order of Mr. Mankodi was liable to be set aside.5. The High Court has come to the conclusion that under Section 63 (2) of the Act the State Government had power to entertain the revision application filed by the girasdars. In view of our earlier conclusion we do not think it necessary to go into that question. Hence we refrain from deciding that question.
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0[ds]4. The first question that we have to consider is whether Mr. Mankodi had competence to quash the order made by the Saurashtra Government on October 22, 1956.It must be remembered that Mr. Mankodi was functioning as the delegate of the State Government. The order passed by Mr. Mankodi, in law amounted to a review of the order made by Saurashtra Government.It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to our notice from which it could be gathered that the Government had power to review its own order. If the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order.The question whether the Governments order is correct or valid in law does not arise for consideration in these proceedings so long as that order is not set aside or declared void by a competent authority. Hence the same cannot be ignored. The Subordinate Tribunals have to carry out that order. For this reason alone the order of Mr. Mankodi was liable to be set aside.5. The High Court has come to the conclusion that under Section 63 (2) of the Act the State Government had power to entertain the revision application filed by the girasdars. In view of our earlier conclusion we do not think it necessary to go into that question. Hence we refrain from deciding that question.
| 0 | 1,513 | 277 |
### 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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The Tribunal by its order dated January 28, 1954 remanded the matters to the Special Mamlatdar for further enquiry in accordance with the directions given by it. The Special Mamlatdar recorded further evidence and by his order dated October 19, 1954 he again held that the family was joint. The girasdars did not appeal against that order within the time prescribed. But on September 4, 1956, they filed applications to the Saurashtra Government under sub-section (2) of Section 63 of the Act to set aside the orders of the Special Mamlatdar and the Deputy Collector. These applications were accepted by the Government on October 22, 1956. The Government set aside the orders of the Special Mamlatdar and the Deputy Collector and remanded the cases to Mahalkari, Kotdasanghani to rehear and decide the cases on merits. At this stage it may be noted that by the time the Government came to make those orders the office of the Special Mamlatdar had been abolished and his jurisdiction had been transferred to Mahalkari, Kotdasanghani. The Mahalkari by his order dated December 21, 1957 held that the family had separated and that the girasdars were entitled to separate gharkheds. After this order was passed Jesang, the uncle of the respondent appears to have settled his dispute with his tenants and the order made by Mahalkari in his petition became final. But in the applications made by his nephews, the tenants appealed to the District Deputy Collector but their appeal was rejected by him on February 25, 1958. Against that order the matter was taken up in revision by the tenants to the Tribunal. The Tribunal by its order dated April 29, 1958 rejected the revision application taking the view that it had no jurisdiction to entertain them as the matter had earlier been considered by the State Government. Thereafter on May 24, 1958, the tenants filed a revision petition to the State Government of Bombay as the State of Saurashtra had been merged in the State of Bombay by that time. The Bombay Government sent down that revision petition to the Commissioner, Rajkot Division to hear the parties and to submit a report. The petition was heard by Mr. Shunglu who was the Commissioner of Rajkot Division at that time. On November 10, 1958 he reported to the State Government recommending that the order made by the Mahalkari on December 21, 1957 and by the District Deputy Collector on February 25, 1958 should be set aside as they were wrong on merits. The State Government agreed with the recommendation and directed the Commissioner, Rajkot Division to call upon the girasdars to show cause why the two orders in question should not be cancelled. After the receipt of that order Mr. Monani, the then Commissioner heard the parties and recommended to the Government on September 28, 1958 to set aside the orders in question as in his opinion the order made by the Saurashtra Government on October 22, 1956 was made without the authority of law. But by the time this recommendation came to be considered by the State Government, the State of Gujarat of which the territory of the former State of Saurashtra is a part had come into existence. The Gujarat Government by its notification dated July 19, 1960 delegated its functions under Section 63 of the Act to the Commissioners. Therefore the recommendation of Mr. Monani came back to the Commissioner, Rajkot Division for passing a suitable order. Hence Mr. Mankodi, the then Commissioner of Rajkot, took up the matter for consideration. He by his order dated March 29, 1962, set aside the order passed by the Saurashtra Government on October 22, 1956 taking the view that the Government had no competence to make that order.3. The order of Mr. Mankodi was challenged before the High Court of Gujarat by means of writ petition under Articles 226 and 227 of the Constitution. The High Court has set aside that order taking the view that Mr. Mankodi was not right in his conclusion that the State Government could not have passed the order which it passed on October 22, 1956, under Section 63 (2) of the Act. It also quashed the order made by the Revenue Tribunal on April 29, 1958. Further it directed the Gujarat Revenue Tribunal to dispose of the matter in accordance with law. As against that order this appeal has been brought on the strength of the certificate issued by the Gujarat High Court.4. The first question that we have to consider is whether Mr. Mankodi had competence to quash the order made by the Saurashtra Government on October 22, 1956. It must be remembered that Mr. Mankodi was functioning as the delegate of the State Government. The order passed by Mr. Mankodi, in law amounted to a review of the order made by Saurashtra Government.It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to our notice from which it could be gathered that the Government had power to review its own order. If the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order.The question whether the Governments order is correct or valid in law does not arise for consideration in these proceedings so long as that order is not set aside or declared void by a competent authority. Hence the same cannot be ignored. The Subordinate Tribunals have to carry out that order. For this reason alone the order of Mr. Mankodi was liable to be set aside.5. The High Court has come to the conclusion that under Section 63 (2) of the Act the State Government had power to entertain the revision application filed by the girasdars. In view of our earlier conclusion we do not think it necessary to go into that question. Hence we refrain from deciding that question.
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4. The first question that we have to consider is whether Mr. Mankodi had competence to quash the order made by the Saurashtra Government on October 22, 1956.It must be remembered that Mr. Mankodi was functioning as the delegate of the State Government. The order passed by Mr. Mankodi, in law amounted to a review of the order made by Saurashtra Government.It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to our notice from which it could be gathered that the Government had power to review its own order. If the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order.The question whether the Governments order is correct or valid in law does not arise for consideration in these proceedings so long as that order is not set aside or declared void by a competent authority. Hence the same cannot be ignored. The Subordinate Tribunals have to carry out that order. For this reason alone the order of Mr. Mankodi was liable to be set aside.5. The High Court has come to the conclusion that under Section 63 (2) of the Act the State Government had power to entertain the revision application filed by the girasdars. In view of our earlier conclusion we do not think it necessary to go into that question. Hence we refrain from deciding that question.
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Commissioner Of Income-Tax,Madras Vs. Janabha Muhammad Hussainnachiar Ammal
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law to such proceedings. But where the proceedings related to a period when the pre-existing law was in force, there might be some doubt as to which law was to apply. Section 31 was enacted to remove that doubt and to make s. 34 of the principal Act as it stood after the 1948 amendment applicable to these proceedings. That is why the words "shall always be deemed to have applied" are used; they emphasise that the amended section is deemed always to have applied to amendment had not been made. The latter part of s. 31 also makes this view equally clear. It says that no notice or order of assessment shall be called in question on the ground that s. 34 did not apply in respect of assessment for a year prior to April 1, 1948. Section 34 here contemplated must be the section as amended in 1948, for if it was not so, then it would be the pre-existing section which of course would have applied, if not repealed, to an assessment for a year ending prior to April 1, 1948 and no question of its not so applying would have arisen.I thus arrive at the conclusion that under s. 31 of the 1953 Act, the provisions of sub-ss. (1) and (3) - I leave sub-s. (2) out as irrelevant - of s. 34 of the principal Act as amended in 1948 are to be applied and deemed always to have applied to assessment proceedings in respect of a year ended before April 1, 1948 where the proceedings were commenced after September 8, 1948, A notice issued and an order of assessment made in such proceedings are to be held valid if the notice is issued "in accordance with sub-section (1)" of s. 34 as it stood after the 1948 amendment and the assessment is "completed in pursuance of such notice within the time specified in sub-section (3)" of the same s. 34. Now the notice and assessment in the present case satisfy all these conditions. To them, therefore, s. 34 as amended in 1948 applies. Judged by that section, admittedly the notice and assessment order are unexceptionable.13. It is true that in the present case when the notice was issued and the assessment made, the time to do either under the law as it stood before the 1948 amendment had expired. It may be that law would have applied to it if the 1953 Act had not been passed. It may also be, as was said in the Calcutta Discount Co. [I.A.R. (1953) Cal. 721 .] case, that by itself, the 1948 amendment of s. 34 would not have permitted assessment proceedings in respect of 1942-43 to be commenced in 1949 when under the previous law the time to issue a notice and to make an assessment for that year had expired before the 1948 amendment had come into force. All this however is to no purpose. No such question arises here. The legislature had undoubtedly the power to make s. 34 as amended in 1948 apply to an assessment for 1942-43 by giving it a retrospective operation inspite of the time to issue a notice and to make an assessment fixed by the pre-existing law having expired before the amendment came into effect. The question really is one of interpretation, namely, whether the legislature had given such retrospective operation.Now it seems to me that s. 31 of the 1953 Act clearly gives s. 34 of the principal Act as amended in 1948 such retrospective operation. It plainly makes s. 34 as so amended applicable to assessments for years ended before the amendment came into force. In does not say that s. 34 as amended is to apply to assessments for these years only when the time to issue the notice or make the assessment in respect of these years under the pre-existing law had not expired. It applied the amended s. 34 "to any assessment ................. for any year ending before the 1st day of April, 1948 in an case where proceedings ............ were commenced .................. after the 8th day of September 1948". Likewise any notice and any assessment in respect of any year ending before April 1, 1948 is to be held valid, if valid under s. 34 as amended in 1948. I find no justification in view of the language used to interpret s. 31 as applying s. 34 as amended in 1948 only to cases where the time to issue the notice and make the assessment had not expired while the pre-existing law was in force. The latter part of s. 31 seems to lead independently to the same conclusion. It makes "and notice issued in accordance with sub-section (1) or any assessment completed in pursuance of such notice within the time specified in sub-section (3)" valid. All that is necessary is that all notices and assessment orders in respect of years ending before April 1, 1948 in proceedings commenced after April 8, 1948 shall comply with the provisions of s. 34 as amended in 1948. So a notice and an assessment order valid under s. 34 as amended in 1948 would be valid even if the time prescribed in respect of them by s. 34 as it stood before the 1948 amendment, had expired.14. In my view, for these reasons, s. 34 of the principal Act as amended in 1948 applies to the notice issued and the assessment order made in this case. Both of them are valid under s. 34 as so amended. The High Court should have answered the question framed in the affirmative.In the result, I would allow the appeal and set aside the order of the High Court. The appellant will however pay the respondents costs of this appeal as it agreed to do so as appears from the certificate on which this appeal has been admitted.[For the Judgment of Hidayatullah and Raghubar Dayal, JJ., see S. C. Prashar, Income-tax Officer v. Vasantsen Dwarkadas, ante p. 29].15.
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1[ds]It seems to me quite plain that s. 31 of the 1953 Act applies sub-ss. (1) and (3) of s. 34 of the Income-tax Act, 1922 (hereafter called the principal Act), as it stood after the 1948 amendment, to assessment proceedings in respect of years ending before April 1, 1948 where the proceedings commenced after September 8, 1948 and makes the validly of the proceedings depend on that section as so amended. Indeed, the contrary has not been contended at the bar. It has to be remembered that the amending Act of 1948 was passed on September 8, 1948 but it given retrospective effect from March 30, 1948. It may be stated that the amending Act repealed the existing s. 34 of the principal Act and substituted for it a new section. I think it is quite clear that the pre-existing s. 34 which was repealed by the 1948 amendment could not have applied to proceedings commenced after repeal. There was no question of applying the pre-existing law to such proceedings. But where the proceedings related to a period when the pre-existing law was in force, there might be some doubt as to which law was to apply. Section 31 was enacted to remove that doubt and to make s. 34 of the principal Act as it stood after the 1948 amendment applicable to these proceedings. That is why the words "shall always be deemed to have applied" are used; they emphasise that the amended section is deemed always to have applied to amendment had not been made. The latter part of s. 31 also makes this view equally clear. It says that no notice or order of assessment shall be called in question on the ground that s. 34 did not apply in respect of assessment for a year prior to April 1, 1948. Section 34 here contemplated must be the section as amended in 1948, for if it was not so, then it would be the pre-existing section which of course would have applied, if not repealed, to an assessment for a year ending prior to April 1, 1948 and no question of its not so applying would have arisen.I thus arrive at the conclusion that under s. 31 of the 1953 Act, the provisions of sub-ss. (1) and (3) - I leave sub-s. (2) out as irrelevant - of s. 34 of the principal Act as amended in 1948 are to be applied and deemed always to have applied to assessment proceedings in respect of a year ended before April 1, 1948 where the proceedings were commenced after September 8, 1948, A notice issued and an order of assessment made in such proceedings are to be held valid if the notice is issued "in accordance with sub-section (1)" of s. 34 as it stood after the 1948 amendment and the assessment is "completed in pursuance of such notice within the time specified in sub-section (3)" of the same s. 34. Now the notice and assessment in the present case satisfy all these conditions. To them, therefore, s. 34 as amended in 1948 applies. Judged by that section, admittedly the notice and assessment order aremy view, for these reasons, s. 34 of the principal Act as amended in 1948 applies to the notice issued and the assessment order made in this case. Both of them are valid under s. 34 as so amended. The High Court should have answered the question framed in the affirmative.In the result, I would allow the appeal and set aside the order of the High Court. The appellant will however pay the respondents costs of this appeal as it agreed to do so as appears from the certificate on which this appeal has been admitted.
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### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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law to such proceedings. But where the proceedings related to a period when the pre-existing law was in force, there might be some doubt as to which law was to apply. Section 31 was enacted to remove that doubt and to make s. 34 of the principal Act as it stood after the 1948 amendment applicable to these proceedings. That is why the words "shall always be deemed to have applied" are used; they emphasise that the amended section is deemed always to have applied to amendment had not been made. The latter part of s. 31 also makes this view equally clear. It says that no notice or order of assessment shall be called in question on the ground that s. 34 did not apply in respect of assessment for a year prior to April 1, 1948. Section 34 here contemplated must be the section as amended in 1948, for if it was not so, then it would be the pre-existing section which of course would have applied, if not repealed, to an assessment for a year ending prior to April 1, 1948 and no question of its not so applying would have arisen.I thus arrive at the conclusion that under s. 31 of the 1953 Act, the provisions of sub-ss. (1) and (3) - I leave sub-s. (2) out as irrelevant - of s. 34 of the principal Act as amended in 1948 are to be applied and deemed always to have applied to assessment proceedings in respect of a year ended before April 1, 1948 where the proceedings were commenced after September 8, 1948, A notice issued and an order of assessment made in such proceedings are to be held valid if the notice is issued "in accordance with sub-section (1)" of s. 34 as it stood after the 1948 amendment and the assessment is "completed in pursuance of such notice within the time specified in sub-section (3)" of the same s. 34. Now the notice and assessment in the present case satisfy all these conditions. To them, therefore, s. 34 as amended in 1948 applies. Judged by that section, admittedly the notice and assessment order are unexceptionable.13. It is true that in the present case when the notice was issued and the assessment made, the time to do either under the law as it stood before the 1948 amendment had expired. It may be that law would have applied to it if the 1953 Act had not been passed. It may also be, as was said in the Calcutta Discount Co. [I.A.R. (1953) Cal. 721 .] case, that by itself, the 1948 amendment of s. 34 would not have permitted assessment proceedings in respect of 1942-43 to be commenced in 1949 when under the previous law the time to issue a notice and to make an assessment for that year had expired before the 1948 amendment had come into force. All this however is to no purpose. No such question arises here. The legislature had undoubtedly the power to make s. 34 as amended in 1948 apply to an assessment for 1942-43 by giving it a retrospective operation inspite of the time to issue a notice and to make an assessment fixed by the pre-existing law having expired before the amendment came into effect. The question really is one of interpretation, namely, whether the legislature had given such retrospective operation.Now it seems to me that s. 31 of the 1953 Act clearly gives s. 34 of the principal Act as amended in 1948 such retrospective operation. It plainly makes s. 34 as so amended applicable to assessments for years ended before the amendment came into force. In does not say that s. 34 as amended is to apply to assessments for these years only when the time to issue the notice or make the assessment in respect of these years under the pre-existing law had not expired. It applied the amended s. 34 "to any assessment ................. for any year ending before the 1st day of April, 1948 in an case where proceedings ............ were commenced .................. after the 8th day of September 1948". Likewise any notice and any assessment in respect of any year ending before April 1, 1948 is to be held valid, if valid under s. 34 as amended in 1948. I find no justification in view of the language used to interpret s. 31 as applying s. 34 as amended in 1948 only to cases where the time to issue the notice and make the assessment had not expired while the pre-existing law was in force. The latter part of s. 31 seems to lead independently to the same conclusion. It makes "and notice issued in accordance with sub-section (1) or any assessment completed in pursuance of such notice within the time specified in sub-section (3)" valid. All that is necessary is that all notices and assessment orders in respect of years ending before April 1, 1948 in proceedings commenced after April 8, 1948 shall comply with the provisions of s. 34 as amended in 1948. So a notice and an assessment order valid under s. 34 as amended in 1948 would be valid even if the time prescribed in respect of them by s. 34 as it stood before the 1948 amendment, had expired.14. In my view, for these reasons, s. 34 of the principal Act as amended in 1948 applies to the notice issued and the assessment order made in this case. Both of them are valid under s. 34 as so amended. The High Court should have answered the question framed in the affirmative.In the result, I would allow the appeal and set aside the order of the High Court. The appellant will however pay the respondents costs of this appeal as it agreed to do so as appears from the certificate on which this appeal has been admitted.[For the Judgment of Hidayatullah and Raghubar Dayal, JJ., see S. C. Prashar, Income-tax Officer v. Vasantsen Dwarkadas, ante p. 29].15.
### Response:
1
### Explanation:
It seems to me quite plain that s. 31 of the 1953 Act applies sub-ss. (1) and (3) of s. 34 of the Income-tax Act, 1922 (hereafter called the principal Act), as it stood after the 1948 amendment, to assessment proceedings in respect of years ending before April 1, 1948 where the proceedings commenced after September 8, 1948 and makes the validly of the proceedings depend on that section as so amended. Indeed, the contrary has not been contended at the bar. It has to be remembered that the amending Act of 1948 was passed on September 8, 1948 but it given retrospective effect from March 30, 1948. It may be stated that the amending Act repealed the existing s. 34 of the principal Act and substituted for it a new section. I think it is quite clear that the pre-existing s. 34 which was repealed by the 1948 amendment could not have applied to proceedings commenced after repeal. There was no question of applying the pre-existing law to such proceedings. But where the proceedings related to a period when the pre-existing law was in force, there might be some doubt as to which law was to apply. Section 31 was enacted to remove that doubt and to make s. 34 of the principal Act as it stood after the 1948 amendment applicable to these proceedings. That is why the words "shall always be deemed to have applied" are used; they emphasise that the amended section is deemed always to have applied to amendment had not been made. The latter part of s. 31 also makes this view equally clear. It says that no notice or order of assessment shall be called in question on the ground that s. 34 did not apply in respect of assessment for a year prior to April 1, 1948. Section 34 here contemplated must be the section as amended in 1948, for if it was not so, then it would be the pre-existing section which of course would have applied, if not repealed, to an assessment for a year ending prior to April 1, 1948 and no question of its not so applying would have arisen.I thus arrive at the conclusion that under s. 31 of the 1953 Act, the provisions of sub-ss. (1) and (3) - I leave sub-s. (2) out as irrelevant - of s. 34 of the principal Act as amended in 1948 are to be applied and deemed always to have applied to assessment proceedings in respect of a year ended before April 1, 1948 where the proceedings were commenced after September 8, 1948, A notice issued and an order of assessment made in such proceedings are to be held valid if the notice is issued "in accordance with sub-section (1)" of s. 34 as it stood after the 1948 amendment and the assessment is "completed in pursuance of such notice within the time specified in sub-section (3)" of the same s. 34. Now the notice and assessment in the present case satisfy all these conditions. To them, therefore, s. 34 as amended in 1948 applies. Judged by that section, admittedly the notice and assessment order aremy view, for these reasons, s. 34 of the principal Act as amended in 1948 applies to the notice issued and the assessment order made in this case. Both of them are valid under s. 34 as so amended. The High Court should have answered the question framed in the affirmative.In the result, I would allow the appeal and set aside the order of the High Court. The appellant will however pay the respondents costs of this appeal as it agreed to do so as appears from the certificate on which this appeal has been admitted.
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Amar Singh Vs. State of Haryana
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of the purchase, the land was under the cultivating possession of Hunta father of Kurra accused. Duli Chand and Risal Singh had made an application for ejectment of Hunta in the revenue Court and this application was pending at the time of the occurrence. On August 26, 1969, the appellant, Hari Singh, Kurra and Bhallu along with Hunta and Chhalu father of Bhallu were challaned under S. 107/150 Cr. P. C. and on the same day Thandu Ram, one Neki and three other persons were challaned under S. 107/150 Cr.P.C. and these cases were pending at the time of the occurrence. Thandu Ram had filed a complaint against the appellant, Hari Singh, Kurra and his father Hunta and Bhallu and his father Chhelu for causing injuries to his son Duli Chand which was also pending. Duli Chand and Ram Chander, sons of Thandu Ram and others were also challaned for causing injuries to the appellant before the occurrence and that case was still pending.5. These circumstances, according to the trial Court, proved that there was enmity between Thandu Ram and the accused.6. As regards the occurrence, the findings of the trial Court were: Hari Singh and the appellant were sitting in front of their house when Kurra and Bhallu gave one lathi blow each to Thandu Ram. They shouted to them to drag Thandu Ram towards them and apparently, the intention of both of them was to give him further blows. Since Thandu Ram was not allowed to be dragged by Mool Chand, Biru and Bhana, both Amar Singh, the appellant and Hari Singh came followed by Ram Sarup in that direction. At that time Hari Singh was armed with a gun which belonged to Ram Sarup and the appellant with a Jaili. The appellant shouted to Hari Singh that he should fire at Thandu Ram. Hari Singh fired the gun which unluckily hit Indro who happened to come there on hearing the shout. The appellant did not stop there. He again incited Hari Singh to make another shot at Thandu Ram. But before Hari Singh could shoot, the gun was snatched away from the hand of Hari Singh by Mool Chand. Then the appellant aimed his Jaili towards Mool Chand but he warded it off by the gun which was broken as a result of the blow.7. The High Court, in appeal, after discussing the evidence, confirmed these findings.8. Counsel for the appellant contended that all the material witnesses examined in the case were either related to Thandu Ram or interested in him and the disinterested neighbours who had seen the occurrence were not examined. There is no evidence that any person other than PWs. 3, 4 and 5 saw the occurrence. PWs. 3, 4 and 5 have been believed by the trial Court as well as by the High Court. We see no force in the contention that because neighbours residing near the place of occurrence have not been examined therefore these witnesses should not have been believed.9. In this connection it may be noted that Hari Singh filed a petition for leave to appeal to this Court. That was dismissed. It would be incongruous if the Court were to come to the conclusion that the occurrence did not take place as stated by the prosecution witnesses.10. The acts of the appellant spoken to by PWs. 3, 4 and 5 would clearly show that he had common intention with Hari Singh to commit the murder of Thandu Ram with whom they were on enimical terms. If the appellant had only shouted lalkar, probably it would have been difficult to sustain the conviction. But the part played by him in the incident as found by the High Court would clearly indicate that he was guilty of the offence under S. 302 read with S. 34.11. Counsel for the appellant submitted that the charge against the appellant was under S. 302 read with S. 149 and therefore, his conviction under S. 302 read with S. 34 was illegal. We do not think that there is any substance in this contention.12. In Karnail Singh v. State of Punjab, 1954 SCR 904 = (AIR 1954 SC 204 ) Venkatarama Ayyar, J., speaking for the Court, held:".........it is true that there is substantial difference between the two sections but they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under S. 149 overlaps the ground covered by S. 34. If the common object which is the subject matter of the charge under S. 149 does not necessarily involve a common intention, then the substitution of S. 34 for S. 149 might result in prejudice to the accused and ought not therefore be permitted. But if the facts to be proved and the evidence to be adduced with reference to the charge under S. 149 would be the same if the charge were under S. 34,then the failure to charge the accused under S. 34 could not result in any prejudice and in such cases the substitution of S. 34 for S. 149 must be held to be a formal matter. There is no such broad proposition of law that there can be no recourse to S. 34 when the charge is only under S. 149."Whether such recourse can be had or not must depend on the facts of each case."13. The findings of the trial Court as confirmed by the High Court would clearly show that the appellant had the common intention. The facts proved and the evidence adduced would have been the same if the appellant had been charged under Section 302 read with S. 34 and we do not see how the appellant was prejudiced.14. We have no hesitation in holding that the High Court was right in its conclusion that, as the appellant had common intention with Hari Singh to murder Thandu Ram, there was no illegality in convicting him under Section 302 read with S. 34.
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0[ds]10. The acts of the appellant spoken to by PWs. 3, 4 and 5 would clearly show that he had common intention with Hari Singh to commit the murder of Thandu Ram with whom they were on enimical terms. If the appellant had only shouted lalkar, probably it would have been difficult to sustain the conviction. But the part played by him in the incident as found by the High Court would clearly indicate that he was guilty of the offence under S. 302 read with S. 34.The findings of the trial Court as confirmed by the High Court would clearly show that the appellant had the common intention. The facts proved and the evidence adduced would have been the same if the appellant had been charged under Section 302 read with S. 34 and we do not see how the appellant was prejudiced.14. We have no hesitation in holding that the High Court was right in its conclusion that, as the appellant had common intention with Hari Singh to murder Thandu Ram, there was no illegality in convicting him under Section 302 read with S. 34.
| 0 | 1,858 | 202 |
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of the purchase, the land was under the cultivating possession of Hunta father of Kurra accused. Duli Chand and Risal Singh had made an application for ejectment of Hunta in the revenue Court and this application was pending at the time of the occurrence. On August 26, 1969, the appellant, Hari Singh, Kurra and Bhallu along with Hunta and Chhalu father of Bhallu were challaned under S. 107/150 Cr. P. C. and on the same day Thandu Ram, one Neki and three other persons were challaned under S. 107/150 Cr.P.C. and these cases were pending at the time of the occurrence. Thandu Ram had filed a complaint against the appellant, Hari Singh, Kurra and his father Hunta and Bhallu and his father Chhelu for causing injuries to his son Duli Chand which was also pending. Duli Chand and Ram Chander, sons of Thandu Ram and others were also challaned for causing injuries to the appellant before the occurrence and that case was still pending.5. These circumstances, according to the trial Court, proved that there was enmity between Thandu Ram and the accused.6. As regards the occurrence, the findings of the trial Court were: Hari Singh and the appellant were sitting in front of their house when Kurra and Bhallu gave one lathi blow each to Thandu Ram. They shouted to them to drag Thandu Ram towards them and apparently, the intention of both of them was to give him further blows. Since Thandu Ram was not allowed to be dragged by Mool Chand, Biru and Bhana, both Amar Singh, the appellant and Hari Singh came followed by Ram Sarup in that direction. At that time Hari Singh was armed with a gun which belonged to Ram Sarup and the appellant with a Jaili. The appellant shouted to Hari Singh that he should fire at Thandu Ram. Hari Singh fired the gun which unluckily hit Indro who happened to come there on hearing the shout. The appellant did not stop there. He again incited Hari Singh to make another shot at Thandu Ram. But before Hari Singh could shoot, the gun was snatched away from the hand of Hari Singh by Mool Chand. Then the appellant aimed his Jaili towards Mool Chand but he warded it off by the gun which was broken as a result of the blow.7. The High Court, in appeal, after discussing the evidence, confirmed these findings.8. Counsel for the appellant contended that all the material witnesses examined in the case were either related to Thandu Ram or interested in him and the disinterested neighbours who had seen the occurrence were not examined. There is no evidence that any person other than PWs. 3, 4 and 5 saw the occurrence. PWs. 3, 4 and 5 have been believed by the trial Court as well as by the High Court. We see no force in the contention that because neighbours residing near the place of occurrence have not been examined therefore these witnesses should not have been believed.9. In this connection it may be noted that Hari Singh filed a petition for leave to appeal to this Court. That was dismissed. It would be incongruous if the Court were to come to the conclusion that the occurrence did not take place as stated by the prosecution witnesses.10. The acts of the appellant spoken to by PWs. 3, 4 and 5 would clearly show that he had common intention with Hari Singh to commit the murder of Thandu Ram with whom they were on enimical terms. If the appellant had only shouted lalkar, probably it would have been difficult to sustain the conviction. But the part played by him in the incident as found by the High Court would clearly indicate that he was guilty of the offence under S. 302 read with S. 34.11. Counsel for the appellant submitted that the charge against the appellant was under S. 302 read with S. 149 and therefore, his conviction under S. 302 read with S. 34 was illegal. We do not think that there is any substance in this contention.12. In Karnail Singh v. State of Punjab, 1954 SCR 904 = (AIR 1954 SC 204 ) Venkatarama Ayyar, J., speaking for the Court, held:".........it is true that there is substantial difference between the two sections but they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under S. 149 overlaps the ground covered by S. 34. If the common object which is the subject matter of the charge under S. 149 does not necessarily involve a common intention, then the substitution of S. 34 for S. 149 might result in prejudice to the accused and ought not therefore be permitted. But if the facts to be proved and the evidence to be adduced with reference to the charge under S. 149 would be the same if the charge were under S. 34,then the failure to charge the accused under S. 34 could not result in any prejudice and in such cases the substitution of S. 34 for S. 149 must be held to be a formal matter. There is no such broad proposition of law that there can be no recourse to S. 34 when the charge is only under S. 149."Whether such recourse can be had or not must depend on the facts of each case."13. The findings of the trial Court as confirmed by the High Court would clearly show that the appellant had the common intention. The facts proved and the evidence adduced would have been the same if the appellant had been charged under Section 302 read with S. 34 and we do not see how the appellant was prejudiced.14. We have no hesitation in holding that the High Court was right in its conclusion that, as the appellant had common intention with Hari Singh to murder Thandu Ram, there was no illegality in convicting him under Section 302 read with S. 34.
### Response:
0
### Explanation:
10. The acts of the appellant spoken to by PWs. 3, 4 and 5 would clearly show that he had common intention with Hari Singh to commit the murder of Thandu Ram with whom they were on enimical terms. If the appellant had only shouted lalkar, probably it would have been difficult to sustain the conviction. But the part played by him in the incident as found by the High Court would clearly indicate that he was guilty of the offence under S. 302 read with S. 34.The findings of the trial Court as confirmed by the High Court would clearly show that the appellant had the common intention. The facts proved and the evidence adduced would have been the same if the appellant had been charged under Section 302 read with S. 34 and we do not see how the appellant was prejudiced.14. We have no hesitation in holding that the High Court was right in its conclusion that, as the appellant had common intention with Hari Singh to murder Thandu Ram, there was no illegality in convicting him under Section 302 read with S. 34.
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Scooters India Limited, Lucknow Vs. Labour Court, Lucknow and Others
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such the findings rendered by the Inquiry Officer and accepted by the Disciplinary Authority were not open to challenge. Even so the Presiding Officer of the Labour Court held as followsHaving regard to all these circumstances and the reasons given above I would hold that the order of termination was not justified in the circumstances of this case. I would therefore set aside the order of termination of service and direct that the workmen shall be reinstated within one month of the award becoming enforceable. The workmen has unfortunately to blame himself for much of the bad blood which had developed between him and the management and therefore his conduct, motivated by ideals which are not relevant had been far from satisfactory. Insofar as it was rough, bordering on rudeness and with highly exaggerated sense of his duties. In these circumstances it will meet the ends of justice if back wages to the extent of 75 per cent are allowed to the workmen. I would make my award accordingly but there shall be no order as costs 4. The High Court, while sustaining the award passed by the Labour Court, adverted to Section 6(2-A) of the Act which is analogous to Section 11-A of the Industrial Disputes Act and pointed out that the section confers wide powers on the Labour Court to interfere with an order of discharge or dismissal of a workmen and to direct the interfere with an order of discharge or dismissal ordering the reinstatement of the workmen on such terms and conditions as it may think fit, including the substitution of any lesser punishment for discharge or dismissal as the circumstances of the case may require and as such the Labour Court was well within its jurisdiction in setting aside the order of termination of services of the respondent and instead ordering his reinstatement together with 75 per cent back wages 5. Mr. Manoj Swarup, learned counsel for the petitioner contended before us that the order of the High Court suffers from three errors viz. (1) the High Court had proceeded on the basis that there was only one order of termination of services passed against the respondent in respect of all the three enquiries whereas an order of termination of services has been passed on the findings rendered in each one of three enquiries; (2) the High Court was in error in taking the view that since the distribution of an offensive pamphlet by the respondent on March 19, 1981 had taken place outside the factory premises para 14.2(13) of the Certified Standing Orders would not be attracted because it refers to distribution or exhibition of offensive handbills, pamphlets etc. inside the factory premises whereas the subversive act complained of would clearly fall under Section 14.2(20) of the Certified Standing Orders; (3) when the Labour Court had found that the enquiry proceedings and been conducted fairly and they were not vitiated in any manner and as such the findings did not call for any interference the Labour Court could not be said to have exercised its powers under Section 6(2-A) of the Act in a judicial manner 6. Insofar as the first contention is concerned, we do not find any merit in it because the order of termination of service refers only to Clause 14.2(13) of the Certified Standing Orders and not to Clause 14.2(20) of the Standing Orders. With reference to the second contention, the High Court has referred in detail in its order to all the three charge-sheets and the findings rendered on those charges and as such the High Court cannot be said to have committed a serious error by mistakenly stating in its judgment as follows The Labour Court after analysing the evidence found that the order of dismissal of the workmen was passed on the basis of the first charge sheet. Separate orders were not passed in regard to the other charge sheets though the record of other charge-sheets also finds place in the dismissal order 7. The High Court has considered at length the nature of the powers conferred on the Labour Court by Section 6(2-A) of the Act for setting aside an order of discharge or dismissal of a workmen and substituting it with an order of lesser punishment and as such it cannot be said that High Court has failed to consider the facts in their entirely. As regards the third contention, we may only state that the Labour Court was not unaware of the nature of the charges framed against the respondent or the findings rendered by the Inquiry Officer and the acceptance of those findings by the Disciplinary Authority. The Labour Court has observed as follows The workmen has unfortunately to blame himself for much of the bad blood which has developed between him and the management and therefore his conduct, motivated by ideals which are not relevant has been far from satisfactory. Insofar as it was rough, bordering on rudeness and with highly exaggerated sense of his duties. In these circumstances it will meet the ends of justice if back wages to the extent of 75 per cent are allowed to the workmen. I would make my award accordingly but there shall be no order as to costsIt cannot therefore be said that the Labour Court had exercised its powers under Section 6(2-A) of the Act in an arbitrary manner and not in a judicial manner. The Labour Court has taken the view that justice must be tempered with mercy and that the erring workmen should be given an opportunity to reform himself and prove to be a loyal and disciplined employee of the petitioner company. It cannot therefore be said that merely because the Labour Court had found the enquiry to be fair and lawful and the findings not to be vitiated in any manner, it ought not to have interfered with the order of termination of service passed against the respondent in exercise of its powers under Section 6(2-A) of the Act
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0[ds]6. Insofar as the first contention is concerned, we do not find any merit in it because the order of termination of service refers only to Clause 14.2(13) of the Certified Standing Orders and not to Clause 14.2(20) of the Standing Orders. With reference to the second contention, the High Court has referred in detail in its order to all the threes and the findings rendered on those charges and as such the High Court cannot be said to have committed a serious error by mistakenly stating in its judgment as followsThe Labour Court after analysing the evidence found that the order of dismissal of the workmen was passed on the basis of the first charge sheet. Separate orders were not passed in regard to the other charge sheets though the record of others also finds place in the dismissal order7. The High Court has considered at length the nature of the powers conferred on the Labour Court by Section) of the Act for setting aside an order of discharge or dismissal of a workmen and substituting it with an order of lesser punishment and as such it cannot be said that High Court has failed to consider the facts in their entirely. As regards the third contention, we may only state that the Labour Court was not unaware of the nature of the charges framed against the respondent or the findings rendered by the Inquiry Officer and the acceptance of those findings by the Disciplinary Authority. The Labour Court has observed as followsThe workmen has unfortunately to blame himself for much of the bad blood which has developed between him and the management and therefore his conduct, motivated by ideals which are not relevant has been far from satisfactory. Insofar as it was rough, bordering on rudeness and with highly exaggerated sense of his duties. In these circumstances it will meet the ends of justice if back wages to the extent of 75 per cent are allowed to the workmen. I would make my award accordingly but there shall be no order as to costsIt cannot therefore be said that the Labour Court had exercised its powers under Section) of the Act in an arbitrary manner and not in a judicial manner. The Labour Court has taken the view that justice must be tempered with mercy and that the erring workmen should be given an opportunity to reform himself and prove to be a loyal and disciplined employee of the petitioner company. It cannot therefore be said that merely because the Labour Court had found the enquiry to be fair and lawful and the findings not to be vitiated in any manner, it ought not to have interfered with the order of termination of service passed against the respondent in exercise of its powers under Section) of the Act
| 0 | 1,440 | 504 |
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such the findings rendered by the Inquiry Officer and accepted by the Disciplinary Authority were not open to challenge. Even so the Presiding Officer of the Labour Court held as followsHaving regard to all these circumstances and the reasons given above I would hold that the order of termination was not justified in the circumstances of this case. I would therefore set aside the order of termination of service and direct that the workmen shall be reinstated within one month of the award becoming enforceable. The workmen has unfortunately to blame himself for much of the bad blood which had developed between him and the management and therefore his conduct, motivated by ideals which are not relevant had been far from satisfactory. Insofar as it was rough, bordering on rudeness and with highly exaggerated sense of his duties. In these circumstances it will meet the ends of justice if back wages to the extent of 75 per cent are allowed to the workmen. I would make my award accordingly but there shall be no order as costs 4. The High Court, while sustaining the award passed by the Labour Court, adverted to Section 6(2-A) of the Act which is analogous to Section 11-A of the Industrial Disputes Act and pointed out that the section confers wide powers on the Labour Court to interfere with an order of discharge or dismissal of a workmen and to direct the interfere with an order of discharge or dismissal ordering the reinstatement of the workmen on such terms and conditions as it may think fit, including the substitution of any lesser punishment for discharge or dismissal as the circumstances of the case may require and as such the Labour Court was well within its jurisdiction in setting aside the order of termination of services of the respondent and instead ordering his reinstatement together with 75 per cent back wages 5. Mr. Manoj Swarup, learned counsel for the petitioner contended before us that the order of the High Court suffers from three errors viz. (1) the High Court had proceeded on the basis that there was only one order of termination of services passed against the respondent in respect of all the three enquiries whereas an order of termination of services has been passed on the findings rendered in each one of three enquiries; (2) the High Court was in error in taking the view that since the distribution of an offensive pamphlet by the respondent on March 19, 1981 had taken place outside the factory premises para 14.2(13) of the Certified Standing Orders would not be attracted because it refers to distribution or exhibition of offensive handbills, pamphlets etc. inside the factory premises whereas the subversive act complained of would clearly fall under Section 14.2(20) of the Certified Standing Orders; (3) when the Labour Court had found that the enquiry proceedings and been conducted fairly and they were not vitiated in any manner and as such the findings did not call for any interference the Labour Court could not be said to have exercised its powers under Section 6(2-A) of the Act in a judicial manner 6. Insofar as the first contention is concerned, we do not find any merit in it because the order of termination of service refers only to Clause 14.2(13) of the Certified Standing Orders and not to Clause 14.2(20) of the Standing Orders. With reference to the second contention, the High Court has referred in detail in its order to all the three charge-sheets and the findings rendered on those charges and as such the High Court cannot be said to have committed a serious error by mistakenly stating in its judgment as follows The Labour Court after analysing the evidence found that the order of dismissal of the workmen was passed on the basis of the first charge sheet. Separate orders were not passed in regard to the other charge sheets though the record of other charge-sheets also finds place in the dismissal order 7. The High Court has considered at length the nature of the powers conferred on the Labour Court by Section 6(2-A) of the Act for setting aside an order of discharge or dismissal of a workmen and substituting it with an order of lesser punishment and as such it cannot be said that High Court has failed to consider the facts in their entirely. As regards the third contention, we may only state that the Labour Court was not unaware of the nature of the charges framed against the respondent or the findings rendered by the Inquiry Officer and the acceptance of those findings by the Disciplinary Authority. The Labour Court has observed as follows The workmen has unfortunately to blame himself for much of the bad blood which has developed between him and the management and therefore his conduct, motivated by ideals which are not relevant has been far from satisfactory. Insofar as it was rough, bordering on rudeness and with highly exaggerated sense of his duties. In these circumstances it will meet the ends of justice if back wages to the extent of 75 per cent are allowed to the workmen. I would make my award accordingly but there shall be no order as to costsIt cannot therefore be said that the Labour Court had exercised its powers under Section 6(2-A) of the Act in an arbitrary manner and not in a judicial manner. The Labour Court has taken the view that justice must be tempered with mercy and that the erring workmen should be given an opportunity to reform himself and prove to be a loyal and disciplined employee of the petitioner company. It cannot therefore be said that merely because the Labour Court had found the enquiry to be fair and lawful and the findings not to be vitiated in any manner, it ought not to have interfered with the order of termination of service passed against the respondent in exercise of its powers under Section 6(2-A) of the Act
### Response:
0
### Explanation:
6. Insofar as the first contention is concerned, we do not find any merit in it because the order of termination of service refers only to Clause 14.2(13) of the Certified Standing Orders and not to Clause 14.2(20) of the Standing Orders. With reference to the second contention, the High Court has referred in detail in its order to all the threes and the findings rendered on those charges and as such the High Court cannot be said to have committed a serious error by mistakenly stating in its judgment as followsThe Labour Court after analysing the evidence found that the order of dismissal of the workmen was passed on the basis of the first charge sheet. Separate orders were not passed in regard to the other charge sheets though the record of others also finds place in the dismissal order7. The High Court has considered at length the nature of the powers conferred on the Labour Court by Section) of the Act for setting aside an order of discharge or dismissal of a workmen and substituting it with an order of lesser punishment and as such it cannot be said that High Court has failed to consider the facts in their entirely. As regards the third contention, we may only state that the Labour Court was not unaware of the nature of the charges framed against the respondent or the findings rendered by the Inquiry Officer and the acceptance of those findings by the Disciplinary Authority. The Labour Court has observed as followsThe workmen has unfortunately to blame himself for much of the bad blood which has developed between him and the management and therefore his conduct, motivated by ideals which are not relevant has been far from satisfactory. Insofar as it was rough, bordering on rudeness and with highly exaggerated sense of his duties. In these circumstances it will meet the ends of justice if back wages to the extent of 75 per cent are allowed to the workmen. I would make my award accordingly but there shall be no order as to costsIt cannot therefore be said that the Labour Court had exercised its powers under Section) of the Act in an arbitrary manner and not in a judicial manner. The Labour Court has taken the view that justice must be tempered with mercy and that the erring workmen should be given an opportunity to reform himself and prove to be a loyal and disciplined employee of the petitioner company. It cannot therefore be said that merely because the Labour Court had found the enquiry to be fair and lawful and the findings not to be vitiated in any manner, it ought not to have interfered with the order of termination of service passed against the respondent in exercise of its powers under Section) of the Act
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Bajaj Auto Ltd Vs. N. K. Firodia & Anr. Etc
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against the Managing Agents. Firodia was justified in opposing reappointment of the Managing Agents without a specific resolution of the share-holders of the company and without a public notice to the shareholders to represent their views in the matter. The Bajaj group acted behind the back of Firodia and wanted to steal a march. The real motive of the Bajaj group was revealed first by imposing restrictions in the month of March, 1968 on the powers of Firodia as Chief Executive of the appellant company and secondly by the resolution in the month of May, 1968 to terminate the services of Firodia as Chief Executive.The refusal to register the transfers was at the meetings of the Board held in the months of May and June, 1968.29. The Directors had a hostile feeling against Firodia and they had the dominant desire to keep Firodia out of the company. The Directors did not act in the interest of the company and their discretion was tainted by unfair conduct and unjustifiable attitude against Firodia.30. The second reason given by the appellant company was that the Firodia group acquired the shares with a design of acquiring interest in the company which was likely to result in a threat to the smooth functioning of the management of the company and to vote down the passing of the special resolution. There are well-recognised safeguards as to notice and content for passing special resolution. Special resolutions are for limited purposes and are not matters of daily occurrence or of daily routine administration. The mere apprehension that a special resolution will not be passed is not a legitimate reason. The shareholders will bestow their intention on matters forming the subject matter of resolution. Passing of special resolutions will depend upon the mandate of the shareholders. It is manifest that the reason given by the Directors was a camouflage to cover their collateral and corrupt motive of preserving the hegemony of the Bajaj group. The motive is corrupt because the Bajaj group acted for their personal interest and not in the bona fide general interest of the company.31. The third reason given by the appellant company was that the shares were being acquired by the Firodia group not with a view of bona fide investment but with a male fide purpose and evil design of obstructing the business of the appellant company. Acquisition or transfer of shares under the Articles in the present case does not suffer from any restrictive impediment like preemption or personal objections to the transferees. There is no evidence that the transferees belonged to a rival concern. Equally, there is no evidence that the Firodia group ever obstructed in the management of the company. On the contrary, the Firodia group advanced large sums of money. Firodia was largely responsible for the gradual growth of the appellant company and for the prosperity of the company. It was therefore an abuse of the fiduciary power of the Directors to refuse to register transfer of shares.32. The Bajaj group obtained transfer of 16230 shares in their favour in the month of March, 1968. The Bajaj group purchased shares in the market at a maximum value of Rs. 411 per share. The holding of the Bajaj group prior to the acquisition of the said 16230 shares was 28600 shares or according to the Bajaj group 31,500 shares. The Firodia group on the other hand prior to the proposed transfer had 23,400 shares or 21,735 shares according to the Bajaj group. The general public held 52,250 shares. This was the position in the month of February, 1968. The Bajaj group by the acquisition of 16230 shares would have a numerical strength of 44830 shares where as the Firodia group would be having 26863 shares if the proposed transfers were allowed by the Directors. The Bajaj group paid Rs. 411 per share. The Firodia group paid roughly about Rs. 200 per share. Firodia was not on the Board of Directors of the appellant company. The Bajaj group and their friends were the Directors. In the year 1967 the Firodia group lodged 4243 shares for transfer in their names and the transfers were registered. Again, in the month of February, 1968 when the Firodia group lodged 68 shares with the appellant company for transfer, the appellant company accepted the said transfer. It is therefore, revealed that after the appellant came to know that Firodia wrote to the Company Law Board in the month of March, 1968 that the Directors of the appellant company developed antipathy against Firodia. The refusal to register the shares was a sequel to the termination of the appointment of Firodia as Chief Executive and it is manifest that the Directors acted for collateral reasons and in their own interest.33. Counsel on behalf of the appellant contended that of the seven Directors only Kamalnayan Bajaj belonged to the Bajaj family and each Director was an independent industrialist and could not be described to be of Bajaj group neither the status and wealth of the Directors nor their lack of relationship with the Bajaj family could be decisive as to whether they exercised their discretion on correct principle or without any corrupt motive. The Firodia group alleged that Kamalnayan Bajaj was an arbitrator in the family dispute of Ramnath A. Podar and that Shriyans Prasad Jain was a close associate of Kamalnayan Bajaj. Irrespective of these allegations, we have already indicated that the Directors failed to exercise their discretion properly by refusing to register transfer of shares on wrong principles and for corrupt and oblique motives.34. The discretion of the Directors is to be tested as the opinion of fair and sensible men in the interest of the company. In the present case the Directors did not act bona fide nor did they act in the general interest of the company. On the contrary, they acted upon a wrong principle and for the oblique motive of squeezing out Firodia The inescapable conclusion is that the Directors acted arbitrarily and unjustifiably.
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0[ds]In the present appeals, the reasons of the Directors have to be tested from three points of view. First, whether the Directors acted in the interest of the company; secondly, whether they acted on a wrong principle; and, thirdly, whether they acted with an oblique motive or for a collateralpurpose.This Court in M/s. Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhunjhunwala, (1962) 2 SCR 339 = (AIR 1961 SC 1669 ) said that"the discretion of the Directors would be nullified if it were established that the Directors acted oppressively, capriciously or corruptly or in some other way male fide".On this evidence it is apparent that Firodia wrote to the Company Law Board in the larger interest of the company. Firodias allegations were against the Managing Agents. Firodia was justified in opposing reappointment of the Managing Agents without a specific resolution of the share-holders of the company and without a public notice to the shareholders to represent their views in the matter. The Bajaj group acted behind the back of Firodia and wanted to steal a march. The real motive of the Bajaj group was revealed first by imposing restrictions in the month of March, 1968 on the powers of Firodia as Chief Executive of the appellant company and secondly by the resolution in the month of May, 1968 to terminate the services of Firodia as Chief Executive.The refusal to register the transfers was at the meetings of the Board held in the months of May and June, 1968.29. The Directors had a hostile feeling against Firodia and they had the dominant desire to keep Firodia out of the company. The Directors did not act in the interest of the company and their discretion was tainted by unfair conduct and unjustifiable attitude against Firodia.30. The second reason given by the appellant company was that the Firodia group acquired the shares with a design of acquiring interest in the company which was likely to result in a threat to the smooth functioning of the management of the company and to vote down the passing of the special resolution. There are well-recognised safeguards as to notice and content for passing special resolution. Special resolutions are for limited purposes and are not matters of daily occurrence or of daily routine administration. The mere apprehension that a special resolution will not be passed is not a legitimate reason. The shareholders will bestow their intention on matters forming the subject matter of resolution. Passing of special resolutions will depend upon the mandate of the shareholders. It is manifest that the reason given by the Directors was a camouflage to cover their collateral and corrupt motive of preserving the hegemony of the Bajaj group. The motive is corrupt because the Bajaj group acted for their personal interest and not in the bona fide general interest of the company.31. The third reason given by the appellant company was that the shares were being acquired by the Firodia group not with a view of bona fide investment but with a male fide purpose and evil design of obstructing the business of the appellant company. Acquisition or transfer of shares under the Articles in the present case does not suffer from any restrictive impediment like preemption or personal objections to the transferees. There is no evidence that the transferees belonged to a rival concern. Equally, there is no evidence that the Firodia group ever obstructed in the management of the company. On the contrary, the Firodia group advanced large sums of money. Firodia was largely responsible for the gradual growth of the appellant company and for the prosperity of the company. It was therefore an abuse of the fiduciary power of the Directors to refuse to register transfer of shares.Counsel on behalf of the appellant contended that of the seven Directors only Kamalnayan Bajaj belonged to the Bajaj family and each Director was an independent industrialist and could not be described to be of Bajaj group neither the status and wealth of the Directors nor their lack of relationship with the Bajaj family could be decisive as to whether they exercised their discretion on correct principle or without any corrupt motive. The Firodia group alleged that Kamalnayan Bajaj was an arbitrator in the family dispute of Ramnath A. Podar and that Shriyans Prasad Jain was a close associate of Kamalnayan Bajaj. Irrespective of these allegations, we have already indicated that the Directors failed to exercise their discretion properly by refusing to register transfer of shares on wrong principles and for corrupt and oblique motives.The discretion of the Directors is to be tested as the opinion of fair and sensible men in the interest of the company. In the present case the Directors did not act bona fide nor did they act in the general interest of the company. On the contrary, they acted upon a wrong principle and for the oblique motive of squeezing out Firodia The inescapable conclusion is that the Directors acted arbitrarily and unjustifiably.
| 0 | 6,402 | 882 |
### 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:
against the Managing Agents. Firodia was justified in opposing reappointment of the Managing Agents without a specific resolution of the share-holders of the company and without a public notice to the shareholders to represent their views in the matter. The Bajaj group acted behind the back of Firodia and wanted to steal a march. The real motive of the Bajaj group was revealed first by imposing restrictions in the month of March, 1968 on the powers of Firodia as Chief Executive of the appellant company and secondly by the resolution in the month of May, 1968 to terminate the services of Firodia as Chief Executive.The refusal to register the transfers was at the meetings of the Board held in the months of May and June, 1968.29. The Directors had a hostile feeling against Firodia and they had the dominant desire to keep Firodia out of the company. The Directors did not act in the interest of the company and their discretion was tainted by unfair conduct and unjustifiable attitude against Firodia.30. The second reason given by the appellant company was that the Firodia group acquired the shares with a design of acquiring interest in the company which was likely to result in a threat to the smooth functioning of the management of the company and to vote down the passing of the special resolution. There are well-recognised safeguards as to notice and content for passing special resolution. Special resolutions are for limited purposes and are not matters of daily occurrence or of daily routine administration. The mere apprehension that a special resolution will not be passed is not a legitimate reason. The shareholders will bestow their intention on matters forming the subject matter of resolution. Passing of special resolutions will depend upon the mandate of the shareholders. It is manifest that the reason given by the Directors was a camouflage to cover their collateral and corrupt motive of preserving the hegemony of the Bajaj group. The motive is corrupt because the Bajaj group acted for their personal interest and not in the bona fide general interest of the company.31. The third reason given by the appellant company was that the shares were being acquired by the Firodia group not with a view of bona fide investment but with a male fide purpose and evil design of obstructing the business of the appellant company. Acquisition or transfer of shares under the Articles in the present case does not suffer from any restrictive impediment like preemption or personal objections to the transferees. There is no evidence that the transferees belonged to a rival concern. Equally, there is no evidence that the Firodia group ever obstructed in the management of the company. On the contrary, the Firodia group advanced large sums of money. Firodia was largely responsible for the gradual growth of the appellant company and for the prosperity of the company. It was therefore an abuse of the fiduciary power of the Directors to refuse to register transfer of shares.32. The Bajaj group obtained transfer of 16230 shares in their favour in the month of March, 1968. The Bajaj group purchased shares in the market at a maximum value of Rs. 411 per share. The holding of the Bajaj group prior to the acquisition of the said 16230 shares was 28600 shares or according to the Bajaj group 31,500 shares. The Firodia group on the other hand prior to the proposed transfer had 23,400 shares or 21,735 shares according to the Bajaj group. The general public held 52,250 shares. This was the position in the month of February, 1968. The Bajaj group by the acquisition of 16230 shares would have a numerical strength of 44830 shares where as the Firodia group would be having 26863 shares if the proposed transfers were allowed by the Directors. The Bajaj group paid Rs. 411 per share. The Firodia group paid roughly about Rs. 200 per share. Firodia was not on the Board of Directors of the appellant company. The Bajaj group and their friends were the Directors. In the year 1967 the Firodia group lodged 4243 shares for transfer in their names and the transfers were registered. Again, in the month of February, 1968 when the Firodia group lodged 68 shares with the appellant company for transfer, the appellant company accepted the said transfer. It is therefore, revealed that after the appellant came to know that Firodia wrote to the Company Law Board in the month of March, 1968 that the Directors of the appellant company developed antipathy against Firodia. The refusal to register the shares was a sequel to the termination of the appointment of Firodia as Chief Executive and it is manifest that the Directors acted for collateral reasons and in their own interest.33. Counsel on behalf of the appellant contended that of the seven Directors only Kamalnayan Bajaj belonged to the Bajaj family and each Director was an independent industrialist and could not be described to be of Bajaj group neither the status and wealth of the Directors nor their lack of relationship with the Bajaj family could be decisive as to whether they exercised their discretion on correct principle or without any corrupt motive. The Firodia group alleged that Kamalnayan Bajaj was an arbitrator in the family dispute of Ramnath A. Podar and that Shriyans Prasad Jain was a close associate of Kamalnayan Bajaj. Irrespective of these allegations, we have already indicated that the Directors failed to exercise their discretion properly by refusing to register transfer of shares on wrong principles and for corrupt and oblique motives.34. The discretion of the Directors is to be tested as the opinion of fair and sensible men in the interest of the company. In the present case the Directors did not act bona fide nor did they act in the general interest of the company. On the contrary, they acted upon a wrong principle and for the oblique motive of squeezing out Firodia The inescapable conclusion is that the Directors acted arbitrarily and unjustifiably.
### Response:
0
### Explanation:
In the present appeals, the reasons of the Directors have to be tested from three points of view. First, whether the Directors acted in the interest of the company; secondly, whether they acted on a wrong principle; and, thirdly, whether they acted with an oblique motive or for a collateralpurpose.This Court in M/s. Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhunjhunwala, (1962) 2 SCR 339 = (AIR 1961 SC 1669 ) said that"the discretion of the Directors would be nullified if it were established that the Directors acted oppressively, capriciously or corruptly or in some other way male fide".On this evidence it is apparent that Firodia wrote to the Company Law Board in the larger interest of the company. Firodias allegations were against the Managing Agents. Firodia was justified in opposing reappointment of the Managing Agents without a specific resolution of the share-holders of the company and without a public notice to the shareholders to represent their views in the matter. The Bajaj group acted behind the back of Firodia and wanted to steal a march. The real motive of the Bajaj group was revealed first by imposing restrictions in the month of March, 1968 on the powers of Firodia as Chief Executive of the appellant company and secondly by the resolution in the month of May, 1968 to terminate the services of Firodia as Chief Executive.The refusal to register the transfers was at the meetings of the Board held in the months of May and June, 1968.29. The Directors had a hostile feeling against Firodia and they had the dominant desire to keep Firodia out of the company. The Directors did not act in the interest of the company and their discretion was tainted by unfair conduct and unjustifiable attitude against Firodia.30. The second reason given by the appellant company was that the Firodia group acquired the shares with a design of acquiring interest in the company which was likely to result in a threat to the smooth functioning of the management of the company and to vote down the passing of the special resolution. There are well-recognised safeguards as to notice and content for passing special resolution. Special resolutions are for limited purposes and are not matters of daily occurrence or of daily routine administration. The mere apprehension that a special resolution will not be passed is not a legitimate reason. The shareholders will bestow their intention on matters forming the subject matter of resolution. Passing of special resolutions will depend upon the mandate of the shareholders. It is manifest that the reason given by the Directors was a camouflage to cover their collateral and corrupt motive of preserving the hegemony of the Bajaj group. The motive is corrupt because the Bajaj group acted for their personal interest and not in the bona fide general interest of the company.31. The third reason given by the appellant company was that the shares were being acquired by the Firodia group not with a view of bona fide investment but with a male fide purpose and evil design of obstructing the business of the appellant company. Acquisition or transfer of shares under the Articles in the present case does not suffer from any restrictive impediment like preemption or personal objections to the transferees. There is no evidence that the transferees belonged to a rival concern. Equally, there is no evidence that the Firodia group ever obstructed in the management of the company. On the contrary, the Firodia group advanced large sums of money. Firodia was largely responsible for the gradual growth of the appellant company and for the prosperity of the company. It was therefore an abuse of the fiduciary power of the Directors to refuse to register transfer of shares.Counsel on behalf of the appellant contended that of the seven Directors only Kamalnayan Bajaj belonged to the Bajaj family and each Director was an independent industrialist and could not be described to be of Bajaj group neither the status and wealth of the Directors nor their lack of relationship with the Bajaj family could be decisive as to whether they exercised their discretion on correct principle or without any corrupt motive. The Firodia group alleged that Kamalnayan Bajaj was an arbitrator in the family dispute of Ramnath A. Podar and that Shriyans Prasad Jain was a close associate of Kamalnayan Bajaj. Irrespective of these allegations, we have already indicated that the Directors failed to exercise their discretion properly by refusing to register transfer of shares on wrong principles and for corrupt and oblique motives.The discretion of the Directors is to be tested as the opinion of fair and sensible men in the interest of the company. In the present case the Directors did not act bona fide nor did they act in the general interest of the company. On the contrary, they acted upon a wrong principle and for the oblique motive of squeezing out Firodia The inescapable conclusion is that the Directors acted arbitrarily and unjustifiably.
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SAURASHTRA CHEMICALS LTD.(PRESENTLY KNOWN AS SAURASHTRA CHEMICALS DIVISION OF NIRMA LTD.) Vs. NATIONAL INSURANCE CO. LTD
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allowed to take a stand that the claim is hit by the clause pertaining to duration and more so because of absence of any mention in the letter of repudiation. Thus, it went on to hold that from the positive conduct of the insurer in unequivocally appointing a surveyor, the insurer had waived the right which was in its favour under the duration clause. 21. The expression duration is of some significance which is reflective of the existence or otherwise of the policy itself. In the present case, there is no dispute about the subsistence of the policy but is one of violation of Condition 6 of the policy. Furthermore, in the present case the controversy will have to be answered on the basis of Standard Fire and Special Perils Policy relatable to Condition 6 obligating the insured to give forthwith intimation of the loss to the insurer. The two clauses are materially different and relate to two different and distinct insurance policies. In other words, Clause 5 of the Marine Insurance Policy and Clause 6 of the present policy are incomparable being qualitatively different. 22. T o put it differently, Galada case was not a case which considered repudiation based on a premise or a reason similar to Condition 6 of the present policy and a specific plea taken by the insurer in that behalf in the repudiation letter itself. Notably, Clause 5 of the Marine Insurance Policy which was the subject- matter in Galada case did not have a negative covenant as in this case in the proviso to Condition 6 of the subject policy. The fulfilment of the stipulation in Clause 6 of the General Conditions of the Policy is the sine qua non to maintain a valid claim under the policy. 23. We, therefore, agree with the Respondent that the dictum in Galada case is in the context of the facts of that case and does not lay down that on the appointment of a surveyor, per se, the insurer is estopped from raising a plea of violation of the condition warranting a repudiation of the claim. The factum of waiver has to be gathered from the totality of the obtaining circumstances. (Emphasis supplied) 18. In view of the law laid down by the three Judge Bench in the Sonnel Clocks (supra), the argument that by appointing a surveyor the respondent- insurer is estopped from raising the plea of violation of condition prescribing a time limit for intimation/lodging of the claim, has no legs to stand. Thus issue no. (1) is answered accordingly. 19. Insofar as issue no. (2) is concerned it is undisputed that the letter of repudiation did not even remotely mention anything about violation of duration clause stipulated in Clause (6) (i) of the General Conditions of Policy. The Respondent-insurer repudiated the claim solely on the ground that since spontaneous combustion did not result into fire and loss had not been caused by fire as stipulated by policy conditions, there was no liability under the policy. It was for the first time the respondent-insurer raised the issue of delayed intimation of claim and violation of stipulation of Clause 6(i) of the General Conditions of Policy in its reply filed before NCDRC. 20. This court in the case of Galada Power Ltd. (supra) has elucidated upon issue (2) as under : It is evincible, the insurer had taken cognizance of the communication made by the Appellant and nominated a surveyor to verify the loss. Once the said exercise has been undertaken, we are disposed to think that the insurer could not have been allowed to take a stand that the claim is hit by the clause pertaining to duration. In the absence of any mention in the letter of repudiation and also from the conduct of the insurer in appointing a surveyor, it can safely be concluded that the insurer had waived the right which was in its favour under the duration clause. In this regard, Mr. Mukherjee, learned Senior Counsel appearing for the Appellant has commended us to a decision of the High Court of Delhi in Krishna Wanti v. LIC, wherein the High Court has taken note of the fact that if the letter of repudiation did not mention an aspect, the same could not be taken as a stand when the matter is decided. We approve the said view. (Emphasis supplied) 21. Undoubtedly, as mentioned supra, this Court in Sonnel Clocks (supra) has distinguished Galada Power on facts and held that the appointment of a surveyor cannot, as a matter of law, be construed as a waiver of the terms and conditions of the insurance policy. However, in Sonnel Clocks, the insurer had taken a specific plea in the repudiation letter that the loss was not conveyed within the stipulated period. Hence the singular issue before this Court was only whether the insurer had waived the condition as to delay in intimation by appointing a surveyor. This Court in Sonnel Clocks did not have the occasion to consider whether the insurance company could have raised delay as a ground for repudiation for the first time before the consumer forum. 22. Hence we are of the considered opinion that the law as laid down in Galada on issue (2) still holds the field. It is a settled position that an insurance company cannot travel beyond the grounds mentioned in the letter of repudiation. If the insurer has not taken delay in intimation as a specific ground in letter of repudiation, they cannot do so at the stage of hearing of the consumer complaint before NCDRC. 23. Admittedly in the case at hand there was no reference of delay in intimation or lodging of the claim as stipulated in Clause 6(i) of the General Conditions of Policy in the repudiation letter. 24. The NCDRC has failed to take into consideration this aspect of the matter and, therefore, cannot be held to be justified in rejecting the claim of the appellant, on that ground.
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1[ds]15. As is evident from the repudiation letter there is no reference to any of the aspects enumerated in Clause 6(i) of the General Conditions of Policy which reads as under:-6(i) On the happening of any loss or damage, the insured shall forthwith give notice thereof to the company and shall within 15 days after the loss or damage or such further time as the company may in writing allow in that behalf deliver to the company17. However, the dictum in Galada case (supra) came up for consideration before a three Judge Bench of this Court in the case of Sonnel Clocks and Gifts Ltd. (supra) and it was distinguished on the ground that dictum in Galada is in context of the peculiar facts and circumstances of that case and does not lay down that on appointment of the surveyor, the insurer is estopped from raising of plea of violation of condition stipulated in the insurance policy. It may be relevant to extract the following from the said report:-20. The Respondent has rightly pointed out the other distinguishing features in the present case. T o wit, in that case [Galada], the Court had considered Clause 5 of a Marine Insurance Policy wherein the issue was whether the insurance cover itself had extinguished by efflux of time and that the intimation given by the insured to the insurer was not made within 7 days of arrival of the vehicle at the destination mentioned in the policy. According to the insurer, on expiry of 7 days from delivery the insurance cover stood perished and no cover would subsist beyond the said 7 days period. It is in that context, the Court noted that appointment of the surveyor by the insurer beyond the said period can be construed as an act of waiver by the insurer of the position that the policy stands extinguished. In other words, appointment of a surveyor by the insurer was interpreted as a manifestation of the stand of the insurer that the insurance cover still subsists. This is evident from the dictum in para 13 of the reported decision as the Court noted that once a surveyor was nominated to verify the loss, the insurer could not be allowed to take a stand that the claim is hit by the clause pertaining to duration and more so because of absence of any mention in the letter of repudiation. Thus, it went on to hold that from the positive conduct of the insurer in unequivocally appointing a surveyor, the insurer had waived the right which was in its favour under the duration clause21. The expression duration is of some significance which is reflective of the existence or otherwise of the policy itself. In the present case, there is no dispute about the subsistence of the policy but is one of violation of Condition 6 of the policy. Furthermore, in the present case the controversy will have to be answered on the basis of Standard Fire and Special Perils Policy relatable to Condition 6 obligating the insured to give forthwith intimation of the loss to the insurer. The two clauses are materially different and relate to two different and distinct insurance policies. In other words, Clause 5 of the Marine Insurance Policy and Clause 6 of the present policy are incomparable being qualitatively different22. T o put it differently, Galada case was not a case which considered repudiation based on a premise or a reason similar to Condition 6 of the present policy and a specific plea taken by the insurer in that behalf in the repudiation letter itself. Notably, Clause 5 of the Marine Insurance Policy which was the subject- matter in Galada case did not have a negative covenant as in this case in the proviso to Condition 6 of the subject policy. The fulfilment of the stipulation in Clause 6 of the General Conditions of the Policy is the sine qua non to maintain a valid claim under the policy23. We, therefore, agree with the Respondent that the dictum in Galada case is in the context of the facts of that case and does not lay down that on the appointment of a surveyor, per se, the insurer is estopped from raising a plea of violation of the condition warranting a repudiation of the claim. The factum of waiver has to be gathered from the totality of the obtaining circumstances18. In view of the law laid down by the three Judge Bench in the Sonnel Clocks (supra), the argument that by appointing a surveyor the respondent- insurer is estopped from raising the plea of violation of condition prescribing a time limit for intimation/lodging of the claim, has no legs to stand. Thus issue no. (1) is answered accordingly19. Insofar as issue no. (2) is concerned it is undisputed that the letter of repudiation did not even remotely mention anything about violation of duration clause stipulated in Clause (6) (i) of the General Conditions of Policy. The Respondent-insurer repudiated the claim solely on the ground that since spontaneous combustion did not result into fire and loss had not been caused by fire as stipulated by policy conditions, there was no liability under the policy. It was for the first time the respondent-insurer raised the issue of delayed intimation of claim and violation of stipulation of Clause 6(i) of the General Conditions of Policy in its reply filed before NCDRC20. This court in the case of Galada Power Ltd. (supra) has elucidated upon issue (2) as under :It is evincible, the insurer had taken cognizance of the communication made by the Appellant and nominated a surveyor to verify the loss. Once the said exercise has been undertaken, we are disposed to think that the insurer could not have been allowed to take a stand that the claim is hit by the clause pertaining to duration. In the absence of any mention in the letter of repudiation and also from the conduct of the insurer in appointing a surveyor, it can safely be concluded that the insurer had waived the right which was in its favour under the duration clause. In this regard, Mr. Mukherjee, learned Senior Counsel appearing for the Appellant has commended us to a decision of the High Court of Delhi in Krishna Wanti v. LIC, wherein the High Court has taken note of the fact that if the letter of repudiation did not mention an aspect, the same could not be taken as a stand when the matter is decided. We approve the said view21. Undoubtedly, as mentioned supra, this Court in Sonnel Clocks (supra) has distinguished Galada Power on facts and held that the appointment of a surveyor cannot, as a matter of law, be construed as a waiver of the terms and conditions of the insurance policy. However, in Sonnel Clocks, the insurer had taken a specific plea in the repudiation letter that the loss was not conveyed within the stipulated period. Hence the singular issue before this Court was only whether the insurer had waived the condition as to delay in intimation by appointing a surveyor. This Court in Sonnel Clocks did not have the occasion to consider whether the insurance company could have raised delay as a ground for repudiation for the first time before the consumer forum22. Hence we are of the considered opinion that the law as laid down in Galada on issue (2) still holds the field. It is a settled position that an insurance company cannot travel beyond the grounds mentioned in the letter of repudiation. If the insurer has not taken delay in intimation as a specific ground in letter of repudiation, they cannot do so at the stage of hearing of the consumer complaint before NCDRC23. Admittedly in the case at hand there was no reference of delay in intimation or lodging of the claim as stipulated in Clause 6(i) of the General Conditions of Policy in the repudiation letter24. The NCDRC has failed to take into consideration this aspect of the matter and, therefore, cannot be held to be justified in rejecting the claim of the appellant, on that ground.
| 1 | 3,503 | 1,486 |
### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
allowed to take a stand that the claim is hit by the clause pertaining to duration and more so because of absence of any mention in the letter of repudiation. Thus, it went on to hold that from the positive conduct of the insurer in unequivocally appointing a surveyor, the insurer had waived the right which was in its favour under the duration clause. 21. The expression duration is of some significance which is reflective of the existence or otherwise of the policy itself. In the present case, there is no dispute about the subsistence of the policy but is one of violation of Condition 6 of the policy. Furthermore, in the present case the controversy will have to be answered on the basis of Standard Fire and Special Perils Policy relatable to Condition 6 obligating the insured to give forthwith intimation of the loss to the insurer. The two clauses are materially different and relate to two different and distinct insurance policies. In other words, Clause 5 of the Marine Insurance Policy and Clause 6 of the present policy are incomparable being qualitatively different. 22. T o put it differently, Galada case was not a case which considered repudiation based on a premise or a reason similar to Condition 6 of the present policy and a specific plea taken by the insurer in that behalf in the repudiation letter itself. Notably, Clause 5 of the Marine Insurance Policy which was the subject- matter in Galada case did not have a negative covenant as in this case in the proviso to Condition 6 of the subject policy. The fulfilment of the stipulation in Clause 6 of the General Conditions of the Policy is the sine qua non to maintain a valid claim under the policy. 23. We, therefore, agree with the Respondent that the dictum in Galada case is in the context of the facts of that case and does not lay down that on the appointment of a surveyor, per se, the insurer is estopped from raising a plea of violation of the condition warranting a repudiation of the claim. The factum of waiver has to be gathered from the totality of the obtaining circumstances. (Emphasis supplied) 18. In view of the law laid down by the three Judge Bench in the Sonnel Clocks (supra), the argument that by appointing a surveyor the respondent- insurer is estopped from raising the plea of violation of condition prescribing a time limit for intimation/lodging of the claim, has no legs to stand. Thus issue no. (1) is answered accordingly. 19. Insofar as issue no. (2) is concerned it is undisputed that the letter of repudiation did not even remotely mention anything about violation of duration clause stipulated in Clause (6) (i) of the General Conditions of Policy. The Respondent-insurer repudiated the claim solely on the ground that since spontaneous combustion did not result into fire and loss had not been caused by fire as stipulated by policy conditions, there was no liability under the policy. It was for the first time the respondent-insurer raised the issue of delayed intimation of claim and violation of stipulation of Clause 6(i) of the General Conditions of Policy in its reply filed before NCDRC. 20. This court in the case of Galada Power Ltd. (supra) has elucidated upon issue (2) as under : It is evincible, the insurer had taken cognizance of the communication made by the Appellant and nominated a surveyor to verify the loss. Once the said exercise has been undertaken, we are disposed to think that the insurer could not have been allowed to take a stand that the claim is hit by the clause pertaining to duration. In the absence of any mention in the letter of repudiation and also from the conduct of the insurer in appointing a surveyor, it can safely be concluded that the insurer had waived the right which was in its favour under the duration clause. In this regard, Mr. Mukherjee, learned Senior Counsel appearing for the Appellant has commended us to a decision of the High Court of Delhi in Krishna Wanti v. LIC, wherein the High Court has taken note of the fact that if the letter of repudiation did not mention an aspect, the same could not be taken as a stand when the matter is decided. We approve the said view. (Emphasis supplied) 21. Undoubtedly, as mentioned supra, this Court in Sonnel Clocks (supra) has distinguished Galada Power on facts and held that the appointment of a surveyor cannot, as a matter of law, be construed as a waiver of the terms and conditions of the insurance policy. However, in Sonnel Clocks, the insurer had taken a specific plea in the repudiation letter that the loss was not conveyed within the stipulated period. Hence the singular issue before this Court was only whether the insurer had waived the condition as to delay in intimation by appointing a surveyor. This Court in Sonnel Clocks did not have the occasion to consider whether the insurance company could have raised delay as a ground for repudiation for the first time before the consumer forum. 22. Hence we are of the considered opinion that the law as laid down in Galada on issue (2) still holds the field. It is a settled position that an insurance company cannot travel beyond the grounds mentioned in the letter of repudiation. If the insurer has not taken delay in intimation as a specific ground in letter of repudiation, they cannot do so at the stage of hearing of the consumer complaint before NCDRC. 23. Admittedly in the case at hand there was no reference of delay in intimation or lodging of the claim as stipulated in Clause 6(i) of the General Conditions of Policy in the repudiation letter. 24. The NCDRC has failed to take into consideration this aspect of the matter and, therefore, cannot be held to be justified in rejecting the claim of the appellant, on that ground.
### Response:
1
### Explanation:
that once a surveyor was nominated to verify the loss, the insurer could not be allowed to take a stand that the claim is hit by the clause pertaining to duration and more so because of absence of any mention in the letter of repudiation. Thus, it went on to hold that from the positive conduct of the insurer in unequivocally appointing a surveyor, the insurer had waived the right which was in its favour under the duration clause21. The expression duration is of some significance which is reflective of the existence or otherwise of the policy itself. In the present case, there is no dispute about the subsistence of the policy but is one of violation of Condition 6 of the policy. Furthermore, in the present case the controversy will have to be answered on the basis of Standard Fire and Special Perils Policy relatable to Condition 6 obligating the insured to give forthwith intimation of the loss to the insurer. The two clauses are materially different and relate to two different and distinct insurance policies. In other words, Clause 5 of the Marine Insurance Policy and Clause 6 of the present policy are incomparable being qualitatively different22. T o put it differently, Galada case was not a case which considered repudiation based on a premise or a reason similar to Condition 6 of the present policy and a specific plea taken by the insurer in that behalf in the repudiation letter itself. Notably, Clause 5 of the Marine Insurance Policy which was the subject- matter in Galada case did not have a negative covenant as in this case in the proviso to Condition 6 of the subject policy. The fulfilment of the stipulation in Clause 6 of the General Conditions of the Policy is the sine qua non to maintain a valid claim under the policy23. We, therefore, agree with the Respondent that the dictum in Galada case is in the context of the facts of that case and does not lay down that on the appointment of a surveyor, per se, the insurer is estopped from raising a plea of violation of the condition warranting a repudiation of the claim. The factum of waiver has to be gathered from the totality of the obtaining circumstances18. In view of the law laid down by the three Judge Bench in the Sonnel Clocks (supra), the argument that by appointing a surveyor the respondent- insurer is estopped from raising the plea of violation of condition prescribing a time limit for intimation/lodging of the claim, has no legs to stand. Thus issue no. (1) is answered accordingly19. Insofar as issue no. (2) is concerned it is undisputed that the letter of repudiation did not even remotely mention anything about violation of duration clause stipulated in Clause (6) (i) of the General Conditions of Policy. The Respondent-insurer repudiated the claim solely on the ground that since spontaneous combustion did not result into fire and loss had not been caused by fire as stipulated by policy conditions, there was no liability under the policy. It was for the first time the respondent-insurer raised the issue of delayed intimation of claim and violation of stipulation of Clause 6(i) of the General Conditions of Policy in its reply filed before NCDRC20. This court in the case of Galada Power Ltd. (supra) has elucidated upon issue (2) as under :It is evincible, the insurer had taken cognizance of the communication made by the Appellant and nominated a surveyor to verify the loss. Once the said exercise has been undertaken, we are disposed to think that the insurer could not have been allowed to take a stand that the claim is hit by the clause pertaining to duration. In the absence of any mention in the letter of repudiation and also from the conduct of the insurer in appointing a surveyor, it can safely be concluded that the insurer had waived the right which was in its favour under the duration clause. In this regard, Mr. Mukherjee, learned Senior Counsel appearing for the Appellant has commended us to a decision of the High Court of Delhi in Krishna Wanti v. LIC, wherein the High Court has taken note of the fact that if the letter of repudiation did not mention an aspect, the same could not be taken as a stand when the matter is decided. We approve the said view21. Undoubtedly, as mentioned supra, this Court in Sonnel Clocks (supra) has distinguished Galada Power on facts and held that the appointment of a surveyor cannot, as a matter of law, be construed as a waiver of the terms and conditions of the insurance policy. However, in Sonnel Clocks, the insurer had taken a specific plea in the repudiation letter that the loss was not conveyed within the stipulated period. Hence the singular issue before this Court was only whether the insurer had waived the condition as to delay in intimation by appointing a surveyor. This Court in Sonnel Clocks did not have the occasion to consider whether the insurance company could have raised delay as a ground for repudiation for the first time before the consumer forum22. Hence we are of the considered opinion that the law as laid down in Galada on issue (2) still holds the field. It is a settled position that an insurance company cannot travel beyond the grounds mentioned in the letter of repudiation. If the insurer has not taken delay in intimation as a specific ground in letter of repudiation, they cannot do so at the stage of hearing of the consumer complaint before NCDRC23. Admittedly in the case at hand there was no reference of delay in intimation or lodging of the claim as stipulated in Clause 6(i) of the General Conditions of Policy in the repudiation letter24. The NCDRC has failed to take into consideration this aspect of the matter and, therefore, cannot be held to be justified in rejecting the claim of the appellant, on that ground.
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Commissioner Of Income-Tax Vs. Motors and General Store state Ltd.
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other words, there was no price paid or promised to be paid for the transfer of the cinema house known as Sree Rama Talkies together with machinery and equipment described in Schedule I to the deed dated February 21,1956 but there was a consideration in the shape of transfer of 5 per cent tax-free cumulative preference shares of Sri Rama Sugar and Industries Ltd. It follows therefore that the Income-tax authorities were not entitled to treat the transaction dated February 21, 1956 as a sale and to apply provisions of Section 10 (2) (vii) of the Income-tax Act. 6. We pass on to consider the argument of Mr. Narsaraju that in revenue matters it was the substance of the transaction which must be looked at and not the form in which the parties have chosen to clothe the transaction. It was contended that, in the present case, there was in substance a sale of Sree Rama Talkies by the assessee-company for a money consideration of Rs. 1,20,000, though the mode of payment was by transfer of shares and the resolution of the Board of Directors dated September 9, 1955 clearly indicated that the intention of the assessee-company was to sell Sree Rama Talkies along with its equipment concerned for a consideration of Rs. 1,20,000. In the present case, however, there is no suggestion on behalf of the appellant of bad faith on the part of the assessee-company nor is it alleged that the particular form of the transaction was adopted as a cloak to conceal a different transaction. It is not disputed that the document in question was intended to be acted upon and there is no suggestion of mala fides or that the document was never intended to have any legal effect.In the absence of any suggestion of bad faith or fraud the true principle is that the taxing statute has to be applied in accordance with the legal rights of the parties to the transaction. When the transaction is embodied in a document the liability to tax depends upon the meaning and content of the language used in accordance with the ordinary rules of construction. In Bank of Chettinad Ltd. v. C. I. T., Madras. 1940-8 ITR 522 = (AIR 1940 PC 183 ), it was pointed out by the Judicial Committee that the doctrine that in revenue cases the substance of the matter may be regarded as distinguished from the strict legal position, is erroneous. If a person, sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown seeking to recover the tax cannot bring the subject within the letter of the law, the subject is free, however apparently within the spirit of the law the case might otherwise appear to be.In the Duke of Westminsters case (1935) 19 Tax Cas 490 deeds of covenant had been executed by the Duke in favour of employees in such amount that the covenantees, if remaining in the Dukes service, would receive respectively sums equivalent to their wages and salaries If they left the service of the Duke the payments would still have been due, but it was in nearly all instances explained to the employee that so long as the service continued, while the deed did not prevent his claiming ordinary wages in addition, it was expected, that he would not do so. It was argued for the Crown that though in form a grant of an annuity, the transaction was in substance merely one whereby the annuitant was to continue to serve the Duke at his existing salary, so that the annuity must be treated as salary. Neither the Court of Appeal nor the House of Lords agreed with this contention. To regard the payment under the deed as in effect payments of salary would be to treat a transaction of one legal character as if it were a transaction of a different legal character. With regard to the supposed contrast between the form and substance of the arrangement, Lord Russell of Killowen stated at page 524 as follows : If all that is meant by the doctrine is that having once ascertained the legal rights of the parties you may disregard mere nomenclature and decide the question of taxability or non-taxability in accordance with the legal rights, well and good. That is what this House did in the case of Secretary of State in Council of India v. Scoble, (1903) AC 299 = (4 T.C. 618); that and no more. If, on the other hand, the doctrine means that you may brush aside deeds, disregard the legal rights and liabilities arising under a contract between parties, and decide the question of taxability or non-taxability upon the footing of the rights and liabilities of the parties being different from what in law they are, then I entirely dissent from such a doctrine. 7. In a later case - Commissioner of Inland Revenue v. Wesleyan and General Assurance Society, (1948) 30 Tax Cas 11 - Viscount Simon expressed the principle as follows: It may be well to repeat two propositions which are wall established in the application of the law relating to Income Tax. First, the name given to a transaction by the parties concerned does not necessarily decide the nature of the transaction. To call a payment a loan ii it is really an annuity does not assist the taxpayer, any more than to call an item a capital payment would prevent it from being regarded as an income payment if that is its true nature. The question always is what is the real character of the payment, not what the parties call it. Secondly, a transaction which, on its true construction, is of a kind that would escape tax, is not taxable on the ground that the same result could be brought about by a transaction in another form which would attract tax.
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0[ds]We are unable to accept this argument as correct. In the first place, the document is called exchange deedBut, in our opinion, neither the recital in the preamble nor the resolution of the Board of Directors dated September 9, 1955 will control the language of the operative portion of the document or its legal effect.There is no ambiguity in the construction of the operative part. It is clear from the operative part of the document that there was an exchange of the properties described in Schedule I for 5 per cente cumulative preference shares of Sri Rama Sugar and Industries Ltd., Bobbili. It is true that a valuation of Rupees 1,20,000 was fixed to consist of Rs. 60,000 for immovable properties and the goodwill and Rs. 60,000 for movable properties, but that is only for the purpose of payment of stamp duty.In essence the transaction is one of exchange and there was no sale of the properties described in Schedule I for any money consideration. In other words, there was no price paid or promised to be paid for the transfer of the cinema house known as Sree Rama Talkies together with machinery and equipment described in Schedule I to the deed dated February 21,1956 but there was a consideration in the shape of transfer of 5 per cente cumulative preference shares of Sri Rama Sugar and Industries Ltd. It follows therefore that thex authorities were not entitled to treat the transaction dated February 21, 1956 as a sale and to apply provisions of Section 10 (2) (vii) of theIn the present case, however, there is no suggestion on behalf of the appellant of bad faith on the part of they nor is it alleged that the particular form of the transaction was adopted as a cloak to conceal a different transaction. It is not disputed that the document in question was intended to be acted upon and there is no suggestion of mala fides or that the document was never intended to have any legal effect.In the absence of any suggestion of bad faith or fraud the true principle is that the taxing statute has to be applied in accordance with the legal rights of the parties to the transaction. When the transaction is embodied in a document the liability to tax depends upon the meaning and content of the language used in accordance with the ordinary rules of construction7. In a later caseCommissioner of Inland Revenue v. Wesleyan and General Assurance Society, (1948) 30 Tax Cas 11Viscount Simon expressed the principle as follows:It may be well to repeat two propositions which are wall established in the application of the law relating to Income Tax. First, the name given to a transaction by the parties concerned does not necessarily decide the nature of the transaction. To call a payment a loan ii it is really an annuity does not assist the taxpayer, any more than to call an item a capital payment would prevent it from being regarded as an income payment if that is its true nature. The question always is what is the real character of the payment, not what the parties call itSecondly, a transaction which, on its true construction, is of a kind that would escape tax, is not taxable on the ground that the same result could be brought about by a transaction in another form which would attract tax.
| 0 | 3,870 | 610 |
### 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:
other words, there was no price paid or promised to be paid for the transfer of the cinema house known as Sree Rama Talkies together with machinery and equipment described in Schedule I to the deed dated February 21,1956 but there was a consideration in the shape of transfer of 5 per cent tax-free cumulative preference shares of Sri Rama Sugar and Industries Ltd. It follows therefore that the Income-tax authorities were not entitled to treat the transaction dated February 21, 1956 as a sale and to apply provisions of Section 10 (2) (vii) of the Income-tax Act. 6. We pass on to consider the argument of Mr. Narsaraju that in revenue matters it was the substance of the transaction which must be looked at and not the form in which the parties have chosen to clothe the transaction. It was contended that, in the present case, there was in substance a sale of Sree Rama Talkies by the assessee-company for a money consideration of Rs. 1,20,000, though the mode of payment was by transfer of shares and the resolution of the Board of Directors dated September 9, 1955 clearly indicated that the intention of the assessee-company was to sell Sree Rama Talkies along with its equipment concerned for a consideration of Rs. 1,20,000. In the present case, however, there is no suggestion on behalf of the appellant of bad faith on the part of the assessee-company nor is it alleged that the particular form of the transaction was adopted as a cloak to conceal a different transaction. It is not disputed that the document in question was intended to be acted upon and there is no suggestion of mala fides or that the document was never intended to have any legal effect.In the absence of any suggestion of bad faith or fraud the true principle is that the taxing statute has to be applied in accordance with the legal rights of the parties to the transaction. When the transaction is embodied in a document the liability to tax depends upon the meaning and content of the language used in accordance with the ordinary rules of construction. In Bank of Chettinad Ltd. v. C. I. T., Madras. 1940-8 ITR 522 = (AIR 1940 PC 183 ), it was pointed out by the Judicial Committee that the doctrine that in revenue cases the substance of the matter may be regarded as distinguished from the strict legal position, is erroneous. If a person, sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown seeking to recover the tax cannot bring the subject within the letter of the law, the subject is free, however apparently within the spirit of the law the case might otherwise appear to be.In the Duke of Westminsters case (1935) 19 Tax Cas 490 deeds of covenant had been executed by the Duke in favour of employees in such amount that the covenantees, if remaining in the Dukes service, would receive respectively sums equivalent to their wages and salaries If they left the service of the Duke the payments would still have been due, but it was in nearly all instances explained to the employee that so long as the service continued, while the deed did not prevent his claiming ordinary wages in addition, it was expected, that he would not do so. It was argued for the Crown that though in form a grant of an annuity, the transaction was in substance merely one whereby the annuitant was to continue to serve the Duke at his existing salary, so that the annuity must be treated as salary. Neither the Court of Appeal nor the House of Lords agreed with this contention. To regard the payment under the deed as in effect payments of salary would be to treat a transaction of one legal character as if it were a transaction of a different legal character. With regard to the supposed contrast between the form and substance of the arrangement, Lord Russell of Killowen stated at page 524 as follows : If all that is meant by the doctrine is that having once ascertained the legal rights of the parties you may disregard mere nomenclature and decide the question of taxability or non-taxability in accordance with the legal rights, well and good. That is what this House did in the case of Secretary of State in Council of India v. Scoble, (1903) AC 299 = (4 T.C. 618); that and no more. If, on the other hand, the doctrine means that you may brush aside deeds, disregard the legal rights and liabilities arising under a contract between parties, and decide the question of taxability or non-taxability upon the footing of the rights and liabilities of the parties being different from what in law they are, then I entirely dissent from such a doctrine. 7. In a later case - Commissioner of Inland Revenue v. Wesleyan and General Assurance Society, (1948) 30 Tax Cas 11 - Viscount Simon expressed the principle as follows: It may be well to repeat two propositions which are wall established in the application of the law relating to Income Tax. First, the name given to a transaction by the parties concerned does not necessarily decide the nature of the transaction. To call a payment a loan ii it is really an annuity does not assist the taxpayer, any more than to call an item a capital payment would prevent it from being regarded as an income payment if that is its true nature. The question always is what is the real character of the payment, not what the parties call it. Secondly, a transaction which, on its true construction, is of a kind that would escape tax, is not taxable on the ground that the same result could be brought about by a transaction in another form which would attract tax.
### Response:
0
### Explanation:
We are unable to accept this argument as correct. In the first place, the document is called exchange deedBut, in our opinion, neither the recital in the preamble nor the resolution of the Board of Directors dated September 9, 1955 will control the language of the operative portion of the document or its legal effect.There is no ambiguity in the construction of the operative part. It is clear from the operative part of the document that there was an exchange of the properties described in Schedule I for 5 per cente cumulative preference shares of Sri Rama Sugar and Industries Ltd., Bobbili. It is true that a valuation of Rupees 1,20,000 was fixed to consist of Rs. 60,000 for immovable properties and the goodwill and Rs. 60,000 for movable properties, but that is only for the purpose of payment of stamp duty.In essence the transaction is one of exchange and there was no sale of the properties described in Schedule I for any money consideration. In other words, there was no price paid or promised to be paid for the transfer of the cinema house known as Sree Rama Talkies together with machinery and equipment described in Schedule I to the deed dated February 21,1956 but there was a consideration in the shape of transfer of 5 per cente cumulative preference shares of Sri Rama Sugar and Industries Ltd. It follows therefore that thex authorities were not entitled to treat the transaction dated February 21, 1956 as a sale and to apply provisions of Section 10 (2) (vii) of theIn the present case, however, there is no suggestion on behalf of the appellant of bad faith on the part of they nor is it alleged that the particular form of the transaction was adopted as a cloak to conceal a different transaction. It is not disputed that the document in question was intended to be acted upon and there is no suggestion of mala fides or that the document was never intended to have any legal effect.In the absence of any suggestion of bad faith or fraud the true principle is that the taxing statute has to be applied in accordance with the legal rights of the parties to the transaction. When the transaction is embodied in a document the liability to tax depends upon the meaning and content of the language used in accordance with the ordinary rules of construction7. In a later caseCommissioner of Inland Revenue v. Wesleyan and General Assurance Society, (1948) 30 Tax Cas 11Viscount Simon expressed the principle as follows:It may be well to repeat two propositions which are wall established in the application of the law relating to Income Tax. First, the name given to a transaction by the parties concerned does not necessarily decide the nature of the transaction. To call a payment a loan ii it is really an annuity does not assist the taxpayer, any more than to call an item a capital payment would prevent it from being regarded as an income payment if that is its true nature. The question always is what is the real character of the payment, not what the parties call itSecondly, a transaction which, on its true construction, is of a kind that would escape tax, is not taxable on the ground that the same result could be brought about by a transaction in another form which would attract tax.
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Bachpan Bachao Andolan Vs. Union Of India
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psychotropic substances as defined in the relevant international treaties, and to prevent the use of children in the illicit production and trafficking of such substances."E. The high-level segment of the fifty-second session of the Commission on Narcotic Drugs was held on 11 and 12 March 2009 to evaluate progress made since 1998 towards meeting the goals and targets established at the twentieth special session of the General Assembly for1. Countering the world drug problem together;2. To identify future priorities and areas requiring further action and goals and targets to be established for drug control beyond 2009;3. To adopt a political declaration and other measures to enhance international cooperation.The member states pledged to adopt a political declaration and plan of action on international cooperation towards an integrated and balanced strategy to counter the world drug problem. The member states reaffirmed that the ultimate goal of both demand and supply reduction strategies and sustainable development strategies is to minimize and eventually eliminate the availability and use of illicit drugs and psychotropic substances in order to ensure the health and welfare of humankind and encourage the exchange of best practices in demand and supply reduction, and emphasize that each strategy is ineffective in the absence of the other. They further agreed that amphetamine-type stimulants and psychotropic substances continue to pose a serious and constantly evolving challenge to international drug control efforts, which threatens the security, health and welfare of the population, especially youth, and requires a focused and comprehensive national, regional and global response, based on scientific evidence and experience, in an international and multi-sectoral setting.6. The situation is compounded by the fact that children are being encouraged to become drug peddlers, once a child is addicted to drugs.Parliamentary intervention7. Legislative interventions since 2000 have brought focus on the vulnerabilities of children, particularly in the context of substance abuse. The Juvenile Justice (Care and Protection of Children) Act, 2000 defined the expression "child in need of care and protection" to include "... a child who is being or is likely to be grossly abused, tortured or exploited for the purpose of sexual abuse or illegal acts..." (Section 2(d)(vi)).Section 25 provided penalties in the following terms :"Section 25. Penalty for giving intoxicating liquor or narcotic drug or psychotropic substance to juvenile or child:Whoever gives, or causes to be given, to any juvenile or the child any intoxicating liquor in a public place or any narcotic drug or psychotropic substance except upon the order of duly qualified medical practitioner or in case of sickness shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine."8. Parliament enacted the Juvenile Justice (Care and Protection of Children) Act, 2015 which received the assent of the President on 31 December 2015. The expression `child in need of care and protection is defined in clauses (viii), (ix) and (x) of Section 2(14) as follows :"Section 2(14).Child in need of care and protection" means a child-***who has been or is being or is likely to be abused, tortured or exploited for the purpose of sexual abuse or illegal acts; orwho is found vulnerable and is likely to be inducted into drug abuse or trafficking; orwho is being or is likely to be abused for unconscionable gains."Section 3 enunciates the general principles to be followed in the administration of the Act. Among them are :(i) Principle of presumption of innocence;(ii) Principle of dignity and worth;(iii) Principle of participation;(iv) Principle of best interest;(v) Principle of family responsibility;(vi) Principle of safety;(vii) Positive measures;(viii) Principle of non-stigmatising semantics;(xi) Principle of non-waiver of rights;(x) Principle of equality and non- discrimination;(xi) Principle of right to privacy and confidentiality;(xii) Principle of institutionalisation as a measure of last resort;(xiii) Principle of repatriation and restoration;(xiv) Principle of fresh start;(xv) Principle of diversion;(xvi) Principles of natural justice.Sections 77 and 78 provide penalties in the following terms :"77. Whoever gives, or causes to be given, to any child any intoxicating liquor or any narcotic drug or tobacco products or psychotropic substance, except on the order of a duly qualified medical practitioner, shall be punishable with rigorous imprisonment for a term which may extend to seven years and shall also be liable to a fine which may extend up to one lakh rupees.78. Whoever uses a child, for vending, peddling, carrying, supplying or smuggling any intoxicating liquor, narcotic drug or psychotropic substance, shall be liable for rigorous imprisonment for a term which may extend to seven years and shall also be liable to a fine up to one lakh rupees."The 2015 Act provides the legal framework. Stringent punishments have been provided. What is required is proper administrative implementation.The need for a national data base9. A counter affidavit has been filed in these proceedings on behalf of the Union Ministry of Social Justice and Empowerment. Surprisingly, the affidavit indicates that there is no authentic data on the number of victims of substance abuse in India. According to the Union Government, the figures quoted in the report of the Ministry of 2013-14 are only an approximation. In order to build a reliable database, a decision was taken to conduct a detailed round of national survey through the National Sample Survey Association (NSSO). NSSO expressed its inability to conduct the survey. The Ministry is stated to have approached the All India Institute of Medical Sciences for conducting a national survey on the extent, trend and pattern of drug abuse.10. Generation of reliable data is an essential requirement of a policy aimed at curbing substance abuse. In the absence of accurate data at a national, state and sectoral level, policy interventions can at best remain ad hoc. For, in the absence of data there will be no realistic assessment of the nature and extent of policy interventions required having regard to (i) vulnerable states and regions; (ii) high risk populations; (iii) requirement of infrastructure, including de-addiction centres across the states : (iv) requirement of trained man power; and (v) requirement of rehabilitation, treatment and counselling services.
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1[ds]10. Generation of reliable data is an essential requirement of a policy aimed at curbing substance abuse. In the absence of accurate data at a national, state and sectoral level, policy interventions can at best remain ad hoc. For, in the absence of data there will be no realistic assessment of the nature and extent of policy interventions required having regard to (i) vulnerable states and regions; (ii) high risk populations; (iii) requirement of infrastructure, including de-addiction centres across the states : (iv) requirement of trained man power; and (v) requirement of rehabilitation, treatment and counselling services.The importance of adopting a holistic solution to deal with issues pertaining to alcohol, tobacco and drug abuse in the school curriculum has to be adequately emphasized. We are of the view that since the entire issue is pending consideration before the government, it would be appropriate to await the ultimate formulation. However, we may indicate that rather than resting on an "implied inclusion" of such an important subject within an extant head or topic, it would be appropriate if the competent authorities consider how children should be protected from the dangers of substance abuse. These are matters which should not be brushed under the carpet. The authorities should consider how children should be sensitised (having due regard to the age and stage of the child) of the dangers of drug use, the necessity to report drug use and the need to develop resistance to prevailing peer and social pressures.15. The enormity of the problem makes it impractical for the judicial process to address all issues in one proceeding. We have addressed three systemic issues mentioned above. We have done so on the basis of the existing policy framework of the Union government, as evidenced by the material to which we have adverted in the prefatory part of this judgment. We have not laid down policy in exercise of judicial review. We have issued directions to enforce obligations under the existing legislative and administrative
| 1 | 4,273 | 374 |
### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
psychotropic substances as defined in the relevant international treaties, and to prevent the use of children in the illicit production and trafficking of such substances."E. The high-level segment of the fifty-second session of the Commission on Narcotic Drugs was held on 11 and 12 March 2009 to evaluate progress made since 1998 towards meeting the goals and targets established at the twentieth special session of the General Assembly for1. Countering the world drug problem together;2. To identify future priorities and areas requiring further action and goals and targets to be established for drug control beyond 2009;3. To adopt a political declaration and other measures to enhance international cooperation.The member states pledged to adopt a political declaration and plan of action on international cooperation towards an integrated and balanced strategy to counter the world drug problem. The member states reaffirmed that the ultimate goal of both demand and supply reduction strategies and sustainable development strategies is to minimize and eventually eliminate the availability and use of illicit drugs and psychotropic substances in order to ensure the health and welfare of humankind and encourage the exchange of best practices in demand and supply reduction, and emphasize that each strategy is ineffective in the absence of the other. They further agreed that amphetamine-type stimulants and psychotropic substances continue to pose a serious and constantly evolving challenge to international drug control efforts, which threatens the security, health and welfare of the population, especially youth, and requires a focused and comprehensive national, regional and global response, based on scientific evidence and experience, in an international and multi-sectoral setting.6. The situation is compounded by the fact that children are being encouraged to become drug peddlers, once a child is addicted to drugs.Parliamentary intervention7. Legislative interventions since 2000 have brought focus on the vulnerabilities of children, particularly in the context of substance abuse. The Juvenile Justice (Care and Protection of Children) Act, 2000 defined the expression "child in need of care and protection" to include "... a child who is being or is likely to be grossly abused, tortured or exploited for the purpose of sexual abuse or illegal acts..." (Section 2(d)(vi)).Section 25 provided penalties in the following terms :"Section 25. Penalty for giving intoxicating liquor or narcotic drug or psychotropic substance to juvenile or child:Whoever gives, or causes to be given, to any juvenile or the child any intoxicating liquor in a public place or any narcotic drug or psychotropic substance except upon the order of duly qualified medical practitioner or in case of sickness shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine."8. Parliament enacted the Juvenile Justice (Care and Protection of Children) Act, 2015 which received the assent of the President on 31 December 2015. The expression `child in need of care and protection is defined in clauses (viii), (ix) and (x) of Section 2(14) as follows :"Section 2(14).Child in need of care and protection" means a child-***who has been or is being or is likely to be abused, tortured or exploited for the purpose of sexual abuse or illegal acts; orwho is found vulnerable and is likely to be inducted into drug abuse or trafficking; orwho is being or is likely to be abused for unconscionable gains."Section 3 enunciates the general principles to be followed in the administration of the Act. Among them are :(i) Principle of presumption of innocence;(ii) Principle of dignity and worth;(iii) Principle of participation;(iv) Principle of best interest;(v) Principle of family responsibility;(vi) Principle of safety;(vii) Positive measures;(viii) Principle of non-stigmatising semantics;(xi) Principle of non-waiver of rights;(x) Principle of equality and non- discrimination;(xi) Principle of right to privacy and confidentiality;(xii) Principle of institutionalisation as a measure of last resort;(xiii) Principle of repatriation and restoration;(xiv) Principle of fresh start;(xv) Principle of diversion;(xvi) Principles of natural justice.Sections 77 and 78 provide penalties in the following terms :"77. Whoever gives, or causes to be given, to any child any intoxicating liquor or any narcotic drug or tobacco products or psychotropic substance, except on the order of a duly qualified medical practitioner, shall be punishable with rigorous imprisonment for a term which may extend to seven years and shall also be liable to a fine which may extend up to one lakh rupees.78. Whoever uses a child, for vending, peddling, carrying, supplying or smuggling any intoxicating liquor, narcotic drug or psychotropic substance, shall be liable for rigorous imprisonment for a term which may extend to seven years and shall also be liable to a fine up to one lakh rupees."The 2015 Act provides the legal framework. Stringent punishments have been provided. What is required is proper administrative implementation.The need for a national data base9. A counter affidavit has been filed in these proceedings on behalf of the Union Ministry of Social Justice and Empowerment. Surprisingly, the affidavit indicates that there is no authentic data on the number of victims of substance abuse in India. According to the Union Government, the figures quoted in the report of the Ministry of 2013-14 are only an approximation. In order to build a reliable database, a decision was taken to conduct a detailed round of national survey through the National Sample Survey Association (NSSO). NSSO expressed its inability to conduct the survey. The Ministry is stated to have approached the All India Institute of Medical Sciences for conducting a national survey on the extent, trend and pattern of drug abuse.10. Generation of reliable data is an essential requirement of a policy aimed at curbing substance abuse. In the absence of accurate data at a national, state and sectoral level, policy interventions can at best remain ad hoc. For, in the absence of data there will be no realistic assessment of the nature and extent of policy interventions required having regard to (i) vulnerable states and regions; (ii) high risk populations; (iii) requirement of infrastructure, including de-addiction centres across the states : (iv) requirement of trained man power; and (v) requirement of rehabilitation, treatment and counselling services.
### Response:
1
### Explanation:
10. Generation of reliable data is an essential requirement of a policy aimed at curbing substance abuse. In the absence of accurate data at a national, state and sectoral level, policy interventions can at best remain ad hoc. For, in the absence of data there will be no realistic assessment of the nature and extent of policy interventions required having regard to (i) vulnerable states and regions; (ii) high risk populations; (iii) requirement of infrastructure, including de-addiction centres across the states : (iv) requirement of trained man power; and (v) requirement of rehabilitation, treatment and counselling services.The importance of adopting a holistic solution to deal with issues pertaining to alcohol, tobacco and drug abuse in the school curriculum has to be adequately emphasized. We are of the view that since the entire issue is pending consideration before the government, it would be appropriate to await the ultimate formulation. However, we may indicate that rather than resting on an "implied inclusion" of such an important subject within an extant head or topic, it would be appropriate if the competent authorities consider how children should be protected from the dangers of substance abuse. These are matters which should not be brushed under the carpet. The authorities should consider how children should be sensitised (having due regard to the age and stage of the child) of the dangers of drug use, the necessity to report drug use and the need to develop resistance to prevailing peer and social pressures.15. The enormity of the problem makes it impractical for the judicial process to address all issues in one proceeding. We have addressed three systemic issues mentioned above. We have done so on the basis of the existing policy framework of the Union government, as evidenced by the material to which we have adverted in the prefatory part of this judgment. We have not laid down policy in exercise of judicial review. We have issued directions to enforce obligations under the existing legislative and administrative
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M.Mansoor Vs. United India Insurance Co.Ltd
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claim?? 13. The question relating to deduction for personal and living expenses and selection of multiplier fell for consideration before this Court in Sarla Verma vs. Delhi Transport Corporation (Supra) cited above and this Court referred to large number of precedents including the judgments in U.P. SRTC vs. Trilok Chandra (1996) 4 SCC 362 , Nance vs. British Columbia Electric Railway Co. Ltd. (1951) 2 All ER 448 (PC), Davies vs. Powell Duffryn Associated Collieries Ltd. No.2 (1942) 1 All ER 657 (HL) and made an attempt to limit the exercise of discretion by the Tribunals and the High Courts in the matter of award of compensation by laying down - straitjacket formula under different headings in its judgment some of which are enumerated below : ?30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in U.P. SRTC vs. Trilok Chandra (1996) 4 SCC 362 , the general practice is to apply standardized deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6 and one-fifth (1/5th) where the number of dependent family members exceeds six. 31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his - own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependant on the father. 32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two- third.? 14. Admittedly, both the parents namely the appellants herein have been held to be dependants to the deceased Amjath Khan Arabu and therefore, the Tribunal held that they have the right to get the compensation. The Tribunal as well as the High Court made a deduction of 1/3rd only towards personal and living expenses of the deceased and as rightly contended by the learned counsel for the Respondent No.1, the deceased being a bachelor and the - claimants being parents, the deduction of 50% has to be made as personal and living expenses as per the decision of this Court in Sarla Verma case (supra) extracted above. The first question is determined accordingly. 15. The Tribunal adopted the multiplier of 17 and the High Court determined the multiplier as 12 on the basis of the age of the parents/claimants. This Court in the decision in Amrit Bhanu Shali & Ors. vs. National Insurance Company Limited & Ors. (2012) 11 SCC 738 held as follows : ?15. The selection of multiplier is based on the age of the deceased and not on the basis of the age of the dependent. There may be a number of dependents of the deceased whose age may be different and, therefore, the age of the dependents has no nexus with the computation of compensation.? 16. In the decision in Sarla Verma case (supra) this Court held that the multiplier to be used should be as mentioned in column (4) of the table of the said judgment which starts with an operative multiplier of 18. As the age of the deceased at the time of the death was 24 years, the multiplier of 18 ought to have been applied. The Tribunal taking into consideration the age of the deceased wrongly – applied the multiplier of 17 and the High Court committed a serious error by bringing it down to the multiplier of 12. 17. Appellants produced the Salary Certificate of deceased Amjath Khan Arabu, which has been marked as Ex.P-8. It shows that the deceased was earning Rs.18,100/- per month. The Tribunal has rightly taken into consideration the aforesaid income for computing the compensation. The annual income comes to Rs.2,17,200/-. If 50% of the said income is deducted towards personal and living expenses of the deceased the contribution to the family will be Rs.1,08,600/-. At the time of the accident the deceased Amjath Khan Arabu was a bachelor about 24 years old hence on the basis of the decision in Sarla Verma case (supra) applying the multiplier of 18, the amount will come to Rs.19,54,800/-. Besides this amount the claimants are entitled to get Rs.50,000/- each towards the loss of affection of the son i.e. Rs.1,00,000/- and Rs.10,000/- on account of funeral and ritual expenses. Therefore, the total amount comes to Rs.20,64,800/- and the claimants are entitled to get the said amount of compensation instead of the amount awarded by the Tribunal and the High Court. They would also be -entitled to get interest at the rate of 6% per annum from the date of the filing of the claim petition till realization.
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1[ds]13. The question relating to deduction for personal and living expenses and selection of multiplier fell for consideration before this Court in Sarla Verma vs. Delhi Transport Corporation (Supra) cited above and this Court referred to large number of precedents including the judgments in U.P. SRTC vs. Trilok Chandra (1996) 4 SCC 362 ,Nance vs. British Columbia Electric Railway Co. Ltd. (1951) 2 All ER 448, Davies vs. Powell Duffryn Associated Collieries Ltd. No.2 (1942) 1 All ER 657 (HL) and made an attempt to limit the exercise of discretion by the Tribunals and the High Courts in the matter of award of compensation by laying down - straitjacket formula under different headings in its judgment some of which are enumerated below :?30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in U.P. SRTC vs. Trilok Chandra (1996) 4 SCC 362 , the general practice is to apply standardized deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6 and one-fifth (1/5th) where the number of dependent family members exceeds six31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his - own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependant on the father32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two- third.?14. Admittedly, both the parents namely the appellants herein have been held to be dependants to the deceased Amjath Khan Arabu and therefore, the Tribunal held that they have the right to get the compensation. The Tribunal as well as the High Court made a deduction of 1/3rd only towards personal and living expenses of the deceased and as rightly contended by the learned counsel for the Respondent No.1, the deceased being a bachelor and the - claimants being parents, the deduction of 50% has to be made as personal and living expenses as per the decision of this Court in Sarla Verma case (supra) extracted above. The first question is determined accordingly15. The Tribunal adopted the multiplier of 17 and the High Court determined the multiplier as 12 on the basis of the age of the parents/claimants. This Court in the decision in Amrit Bhanu Shali & Ors. vs. National Insurance Company Limited & Ors. (2012) 11 SCC 738 held as follows :?15. The selection of multiplier is based on the age of the deceased and not on the basis of the age of the dependent. There may be a number of dependents of the deceased whose age may be different and, therefore, the age of the dependents has no nexus with the computation of compensation.?16. In the decision in Sarla Verma case (supra) this Court held that the multiplier to be used should be as mentioned in column (4) of the table of the said judgment which starts with an operative multiplier of 18. As the age of the deceased at the time of the death was 24 years, the multiplier of 18 ought to have been applied. The Tribunal taking into consideration the age of the deceased wrongly – applied the multiplier of 17 and the High Court committed a serious error by bringing it down to the multiplier of 1217. Appellants produced the Salary Certificate of deceased Amjath Khan Arabu, which has been marked as Ex.P-8. It shows that the deceased was earning Rs.18,100/- per month. The Tribunal has rightly taken into consideration the aforesaid income for computing the compensation. The annual income comes to Rs.2,17,200/-. If 50% of the said income is deducted towards personal and living expenses of the deceased the contribution to the family will be Rs.1,08,600/-. At the time of the accident the deceased Amjath Khan Arabu was a bachelor about 24 years old hence on the basis of the decision in Sarla Verma case (supra) applying the multiplier of 18, the amount will come to Rs.19,54,800/-. Besides this amount the claimants are entitled to get Rs.50,000/- each towards the loss of affection of the son i.e. Rs.1,00,000/- and Rs.10,000/- on account of funeral and ritual expenses. Therefore, the total amount comes to Rs.20,64,800/- and the claimants are entitled to get the said amount of compensation instead of the amount awarded by the Tribunal and the High Court. They would also be -entitled to get interest at the rate of 6% per annum from the date of the filing of the claim petition till realization
| 1 | 2,345 | 1,104 |
### 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:
claim?? 13. The question relating to deduction for personal and living expenses and selection of multiplier fell for consideration before this Court in Sarla Verma vs. Delhi Transport Corporation (Supra) cited above and this Court referred to large number of precedents including the judgments in U.P. SRTC vs. Trilok Chandra (1996) 4 SCC 362 , Nance vs. British Columbia Electric Railway Co. Ltd. (1951) 2 All ER 448 (PC), Davies vs. Powell Duffryn Associated Collieries Ltd. No.2 (1942) 1 All ER 657 (HL) and made an attempt to limit the exercise of discretion by the Tribunals and the High Courts in the matter of award of compensation by laying down - straitjacket formula under different headings in its judgment some of which are enumerated below : ?30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in U.P. SRTC vs. Trilok Chandra (1996) 4 SCC 362 , the general practice is to apply standardized deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6 and one-fifth (1/5th) where the number of dependent family members exceeds six. 31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his - own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependant on the father. 32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two- third.? 14. Admittedly, both the parents namely the appellants herein have been held to be dependants to the deceased Amjath Khan Arabu and therefore, the Tribunal held that they have the right to get the compensation. The Tribunal as well as the High Court made a deduction of 1/3rd only towards personal and living expenses of the deceased and as rightly contended by the learned counsel for the Respondent No.1, the deceased being a bachelor and the - claimants being parents, the deduction of 50% has to be made as personal and living expenses as per the decision of this Court in Sarla Verma case (supra) extracted above. The first question is determined accordingly. 15. The Tribunal adopted the multiplier of 17 and the High Court determined the multiplier as 12 on the basis of the age of the parents/claimants. This Court in the decision in Amrit Bhanu Shali & Ors. vs. National Insurance Company Limited & Ors. (2012) 11 SCC 738 held as follows : ?15. The selection of multiplier is based on the age of the deceased and not on the basis of the age of the dependent. There may be a number of dependents of the deceased whose age may be different and, therefore, the age of the dependents has no nexus with the computation of compensation.? 16. In the decision in Sarla Verma case (supra) this Court held that the multiplier to be used should be as mentioned in column (4) of the table of the said judgment which starts with an operative multiplier of 18. As the age of the deceased at the time of the death was 24 years, the multiplier of 18 ought to have been applied. The Tribunal taking into consideration the age of the deceased wrongly – applied the multiplier of 17 and the High Court committed a serious error by bringing it down to the multiplier of 12. 17. Appellants produced the Salary Certificate of deceased Amjath Khan Arabu, which has been marked as Ex.P-8. It shows that the deceased was earning Rs.18,100/- per month. The Tribunal has rightly taken into consideration the aforesaid income for computing the compensation. The annual income comes to Rs.2,17,200/-. If 50% of the said income is deducted towards personal and living expenses of the deceased the contribution to the family will be Rs.1,08,600/-. At the time of the accident the deceased Amjath Khan Arabu was a bachelor about 24 years old hence on the basis of the decision in Sarla Verma case (supra) applying the multiplier of 18, the amount will come to Rs.19,54,800/-. Besides this amount the claimants are entitled to get Rs.50,000/- each towards the loss of affection of the son i.e. Rs.1,00,000/- and Rs.10,000/- on account of funeral and ritual expenses. Therefore, the total amount comes to Rs.20,64,800/- and the claimants are entitled to get the said amount of compensation instead of the amount awarded by the Tribunal and the High Court. They would also be -entitled to get interest at the rate of 6% per annum from the date of the filing of the claim petition till realization.
### Response:
1
### Explanation:
13. The question relating to deduction for personal and living expenses and selection of multiplier fell for consideration before this Court in Sarla Verma vs. Delhi Transport Corporation (Supra) cited above and this Court referred to large number of precedents including the judgments in U.P. SRTC vs. Trilok Chandra (1996) 4 SCC 362 ,Nance vs. British Columbia Electric Railway Co. Ltd. (1951) 2 All ER 448, Davies vs. Powell Duffryn Associated Collieries Ltd. No.2 (1942) 1 All ER 657 (HL) and made an attempt to limit the exercise of discretion by the Tribunals and the High Courts in the matter of award of compensation by laying down - straitjacket formula under different headings in its judgment some of which are enumerated below :?30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in U.P. SRTC vs. Trilok Chandra (1996) 4 SCC 362 , the general practice is to apply standardized deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6 and one-fifth (1/5th) where the number of dependent family members exceeds six31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his - own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependant on the father32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two- third.?14. Admittedly, both the parents namely the appellants herein have been held to be dependants to the deceased Amjath Khan Arabu and therefore, the Tribunal held that they have the right to get the compensation. The Tribunal as well as the High Court made a deduction of 1/3rd only towards personal and living expenses of the deceased and as rightly contended by the learned counsel for the Respondent No.1, the deceased being a bachelor and the - claimants being parents, the deduction of 50% has to be made as personal and living expenses as per the decision of this Court in Sarla Verma case (supra) extracted above. The first question is determined accordingly15. The Tribunal adopted the multiplier of 17 and the High Court determined the multiplier as 12 on the basis of the age of the parents/claimants. This Court in the decision in Amrit Bhanu Shali & Ors. vs. National Insurance Company Limited & Ors. (2012) 11 SCC 738 held as follows :?15. The selection of multiplier is based on the age of the deceased and not on the basis of the age of the dependent. There may be a number of dependents of the deceased whose age may be different and, therefore, the age of the dependents has no nexus with the computation of compensation.?16. In the decision in Sarla Verma case (supra) this Court held that the multiplier to be used should be as mentioned in column (4) of the table of the said judgment which starts with an operative multiplier of 18. As the age of the deceased at the time of the death was 24 years, the multiplier of 18 ought to have been applied. The Tribunal taking into consideration the age of the deceased wrongly – applied the multiplier of 17 and the High Court committed a serious error by bringing it down to the multiplier of 1217. Appellants produced the Salary Certificate of deceased Amjath Khan Arabu, which has been marked as Ex.P-8. It shows that the deceased was earning Rs.18,100/- per month. The Tribunal has rightly taken into consideration the aforesaid income for computing the compensation. The annual income comes to Rs.2,17,200/-. If 50% of the said income is deducted towards personal and living expenses of the deceased the contribution to the family will be Rs.1,08,600/-. At the time of the accident the deceased Amjath Khan Arabu was a bachelor about 24 years old hence on the basis of the decision in Sarla Verma case (supra) applying the multiplier of 18, the amount will come to Rs.19,54,800/-. Besides this amount the claimants are entitled to get Rs.50,000/- each towards the loss of affection of the son i.e. Rs.1,00,000/- and Rs.10,000/- on account of funeral and ritual expenses. Therefore, the total amount comes to Rs.20,64,800/- and the claimants are entitled to get the said amount of compensation instead of the amount awarded by the Tribunal and the High Court. They would also be -entitled to get interest at the rate of 6% per annum from the date of the filing of the claim petition till realization
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Ningawwa Vs. Byrappa & 3 Ors
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must be brought within the time prescribed under Article 95 of the Limitation Act.6. It was contended on behalf of the respondents that the terminus a quo for the limitation was the date of the execution of the gift deed and the claim of the appellant was therefore barred as the suit was filed more than three years after that date.We are unable to accept this argument as correct. Article 95 prescribes a period of limitation of three years from the time when the fraud becomes known to the party wronged.In the present case, the appellant stated that she did not come to know of the fraud committed by her husband in respect of plots 91 and 92 of Lingadahalli village till his death. The trial court has discussed the evidence on this point and reached the conclusion that the case of the appellant is true. The appellant lived with her husband on affectionate terms till the time of his death. Till then she had no reason to suspect that any fraud had been committed on her in respect of the two plots in Lingadahalli village. It is only after his death when his brothers and respondent No. 4s brothers removed grain from the house against her wishes that the appellant came to know that the lands at Lingadahalli village were included in the gift deed by fraud. The suit was instituted by the appellant within a few days after she came to know of the fraud. We are therefore of the opinion that the suit was brought within time prescribed under Art. 95 of the Indian Limitation Act so far as plots 91 and 92 of Lingadahalli village are concerned.7. As regards plots Nos. 407/1 and 409/1 of Tadavalga village the trial court has found that the husband of the appellant was in a position of active confidence towards her at the time of the gift deed and that he was in a position to dominate her will and the transaction of gift was on the face of it unconscionable. Section 16 (3) of the Indian Contract Act says that where a person who is in a position to dominate the will of another enters into a transaction with him which appears, on the face of it, or on the evidence adduced, to be unconscionable, the burden of proving that such transaction was not induced by undue influence, shall lie upon the person in a position to dominate the will of another. Section 111 of the Indian Evidence Act also states:"Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence."The trial court found that the respondents had not adduced sufficient evidence to rebut the presumption under these statutory provisions and reached the finding that the gift deed was obtained by the appellants husband by undue influence as alleged by her. The finding of the trial court has been affirmed by the High Court. But both the trial court and the High Court refused to grant relief to the appellant on the ground that the suit was barred under Art. 91 of the Limitation Act so far as plots Nos. 407/1 and 409/1 were concerned. On behalf of the appellant it was contended that the lower courts were wrong in taking this view. We are, however, unable to accept this argument as correct. Article 91 of the Indian Limitation Act provides that a suit to set aside an instrument not otherwise provided for (and no other provision of the Act applies to the circumstances of the case) shall be subject to a three years limitation which begins to run when the facts entitling the plaintiff to have the instrument cancelled or set aside are known to him. In the present case, the trial court has found) upon examination of the evidence, that at the very time of the execution of the gift deed, Ex. 45 the appellant knew that her husband prevailed upon her to convey survey plots Nos. 407/1 and 409/1 of Tadavalga village to him by undue influence. The finding of the trial court is based upon the admission of the appellant herself in the course of her evidence. In view of this finding of the trial court it is manifest that the suit of the appellant is barred under Art 91 of the Limitation Act so far as plots Nos. 407/1 and 409/1 of Tadavalga village are concerned. On behalf of the appellant Mr. K. R. Chaudhuri presented the argument that the appellant continued to be under the undue influence of her husband till the date of his death and the three years period under Art. 91 should therefore be taken to run not when the appellant had knowledge of the true nature of the gift deed but from the date when she escaped the influence of her husband by whose will she was dominated.It is not possible to accept this argument in view of the express language of Art. 91 of the Limitation Act which provides that the three years period runs from the date when the plaintiff came to know the facts entitling her to have the instrument cancelled or set aside.This view is borne out by the decision of the Judicial Committee in Someshwar Dutt v. Tribhawan Dutt, 61 Ind App 224 = (AIR 1934 PC 130 ) in which it was held that the limitation of a suit to set aside a deed of gift on the ground that it was obtained by undue influence was governed by Art. 91 of the Indian Limitation Act, and the three years period runs from the date when the plaintiff discovered the true nature of the deed, and not from the date when he escaped from the influence by which he alleged that he was dominated.
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1[ds]In our opinion the Civil Judge was right in taking the view that the appellant never agreed to convey the lands in plots Nos. 91 and 92 of Lingadahalli village and that they were included in the gift deed by the fraud of Shiddappa without the knowledge of theIt was contended on behalf of the respondents that the terminus a quo for the limitation was the date of the execution of the gift deed and the claim of the appellant was therefore barred as the suit was filed more than three years after that date.We are unable to accept this argument as correct. Article 95 prescribes a period of limitation of three years from the time when the fraud becomes known to the party wronged.In the present case, the appellant stated that she did not come to know of the fraud committed by her husband in respect of plots 91 and 92 of Lingadahalli village till his death. The trial court has discussed the evidence on this point and reached the conclusion that the case of the appellant is true. The appellant lived with her husband on affectionate terms till the time of his death. Till then she had no reason to suspect that any fraud had been committed on her in respect of the two plots in Lingadahalli village. It is only after his death when his brothers and respondent No. 4s brothers removed grain from the house against her wishes that the appellant came to know that the lands at Lingadahalli village were included in the gift deed by fraud. The suit was instituted by the appellant within a few days after she came to know of the fraud. We are therefore of the opinion that the suit was brought within time prescribed under Art. 95 of the Indian Limitation Act so far as plots 91 and 92 of Lingadahalli village aretrial court found that the respondents had not adduced sufficient evidence to rebut the presumption under these statutory provisions and reached the finding that the gift deed was obtained by the appellants husband by undue influence as alleged by her. The finding of the trial court has been affirmed by the High Court. But both the trial court and the High Court refused to grant relief to the appellant on the ground that the suit was barred under Art. 91 of the Limitation Act so far as plots Nos. 407/1 and 409/1 were concerned. On behalf of the appellant it was contended that the lower courts were wrong in taking this view. We are, however, unable to accept this argument as correct. Article 91 of the Indian Limitation Act provides that a suit to set aside an instrument not otherwise provided for (and no other provision of the Act applies to the circumstances of the case) shall be subject to a three years limitation which begins to run when the facts entitling the plaintiff to have the instrument cancelled or set aside are known to him. In the present case, the trial court has found) upon examination of the evidence, that at the very time of the execution of the gift deed, Ex. 45 the appellant knew that her husband prevailed upon her to convey survey plots Nos. 407/1 and 409/1 of Tadavalga village to him by undue influence. The finding of the trial court is based upon the admission of the appellant herself in the course of her evidence. In view of this finding of the trial court it is manifest that the suit of the appellant is barred under Art 91 of the Limitation Act so far as plots Nos. 407/1 and 409/1 of Tadavalga village are concerned.
| 1 | 3,139 | 650 |
### 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:
must be brought within the time prescribed under Article 95 of the Limitation Act.6. It was contended on behalf of the respondents that the terminus a quo for the limitation was the date of the execution of the gift deed and the claim of the appellant was therefore barred as the suit was filed more than three years after that date.We are unable to accept this argument as correct. Article 95 prescribes a period of limitation of three years from the time when the fraud becomes known to the party wronged.In the present case, the appellant stated that she did not come to know of the fraud committed by her husband in respect of plots 91 and 92 of Lingadahalli village till his death. The trial court has discussed the evidence on this point and reached the conclusion that the case of the appellant is true. The appellant lived with her husband on affectionate terms till the time of his death. Till then she had no reason to suspect that any fraud had been committed on her in respect of the two plots in Lingadahalli village. It is only after his death when his brothers and respondent No. 4s brothers removed grain from the house against her wishes that the appellant came to know that the lands at Lingadahalli village were included in the gift deed by fraud. The suit was instituted by the appellant within a few days after she came to know of the fraud. We are therefore of the opinion that the suit was brought within time prescribed under Art. 95 of the Indian Limitation Act so far as plots 91 and 92 of Lingadahalli village are concerned.7. As regards plots Nos. 407/1 and 409/1 of Tadavalga village the trial court has found that the husband of the appellant was in a position of active confidence towards her at the time of the gift deed and that he was in a position to dominate her will and the transaction of gift was on the face of it unconscionable. Section 16 (3) of the Indian Contract Act says that where a person who is in a position to dominate the will of another enters into a transaction with him which appears, on the face of it, or on the evidence adduced, to be unconscionable, the burden of proving that such transaction was not induced by undue influence, shall lie upon the person in a position to dominate the will of another. Section 111 of the Indian Evidence Act also states:"Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence."The trial court found that the respondents had not adduced sufficient evidence to rebut the presumption under these statutory provisions and reached the finding that the gift deed was obtained by the appellants husband by undue influence as alleged by her. The finding of the trial court has been affirmed by the High Court. But both the trial court and the High Court refused to grant relief to the appellant on the ground that the suit was barred under Art. 91 of the Limitation Act so far as plots Nos. 407/1 and 409/1 were concerned. On behalf of the appellant it was contended that the lower courts were wrong in taking this view. We are, however, unable to accept this argument as correct. Article 91 of the Indian Limitation Act provides that a suit to set aside an instrument not otherwise provided for (and no other provision of the Act applies to the circumstances of the case) shall be subject to a three years limitation which begins to run when the facts entitling the plaintiff to have the instrument cancelled or set aside are known to him. In the present case, the trial court has found) upon examination of the evidence, that at the very time of the execution of the gift deed, Ex. 45 the appellant knew that her husband prevailed upon her to convey survey plots Nos. 407/1 and 409/1 of Tadavalga village to him by undue influence. The finding of the trial court is based upon the admission of the appellant herself in the course of her evidence. In view of this finding of the trial court it is manifest that the suit of the appellant is barred under Art 91 of the Limitation Act so far as plots Nos. 407/1 and 409/1 of Tadavalga village are concerned. On behalf of the appellant Mr. K. R. Chaudhuri presented the argument that the appellant continued to be under the undue influence of her husband till the date of his death and the three years period under Art. 91 should therefore be taken to run not when the appellant had knowledge of the true nature of the gift deed but from the date when she escaped the influence of her husband by whose will she was dominated.It is not possible to accept this argument in view of the express language of Art. 91 of the Limitation Act which provides that the three years period runs from the date when the plaintiff came to know the facts entitling her to have the instrument cancelled or set aside.This view is borne out by the decision of the Judicial Committee in Someshwar Dutt v. Tribhawan Dutt, 61 Ind App 224 = (AIR 1934 PC 130 ) in which it was held that the limitation of a suit to set aside a deed of gift on the ground that it was obtained by undue influence was governed by Art. 91 of the Indian Limitation Act, and the three years period runs from the date when the plaintiff discovered the true nature of the deed, and not from the date when he escaped from the influence by which he alleged that he was dominated.
### Response:
1
### Explanation:
In our opinion the Civil Judge was right in taking the view that the appellant never agreed to convey the lands in plots Nos. 91 and 92 of Lingadahalli village and that they were included in the gift deed by the fraud of Shiddappa without the knowledge of theIt was contended on behalf of the respondents that the terminus a quo for the limitation was the date of the execution of the gift deed and the claim of the appellant was therefore barred as the suit was filed more than three years after that date.We are unable to accept this argument as correct. Article 95 prescribes a period of limitation of three years from the time when the fraud becomes known to the party wronged.In the present case, the appellant stated that she did not come to know of the fraud committed by her husband in respect of plots 91 and 92 of Lingadahalli village till his death. The trial court has discussed the evidence on this point and reached the conclusion that the case of the appellant is true. The appellant lived with her husband on affectionate terms till the time of his death. Till then she had no reason to suspect that any fraud had been committed on her in respect of the two plots in Lingadahalli village. It is only after his death when his brothers and respondent No. 4s brothers removed grain from the house against her wishes that the appellant came to know that the lands at Lingadahalli village were included in the gift deed by fraud. The suit was instituted by the appellant within a few days after she came to know of the fraud. We are therefore of the opinion that the suit was brought within time prescribed under Art. 95 of the Indian Limitation Act so far as plots 91 and 92 of Lingadahalli village aretrial court found that the respondents had not adduced sufficient evidence to rebut the presumption under these statutory provisions and reached the finding that the gift deed was obtained by the appellants husband by undue influence as alleged by her. The finding of the trial court has been affirmed by the High Court. But both the trial court and the High Court refused to grant relief to the appellant on the ground that the suit was barred under Art. 91 of the Limitation Act so far as plots Nos. 407/1 and 409/1 were concerned. On behalf of the appellant it was contended that the lower courts were wrong in taking this view. We are, however, unable to accept this argument as correct. Article 91 of the Indian Limitation Act provides that a suit to set aside an instrument not otherwise provided for (and no other provision of the Act applies to the circumstances of the case) shall be subject to a three years limitation which begins to run when the facts entitling the plaintiff to have the instrument cancelled or set aside are known to him. In the present case, the trial court has found) upon examination of the evidence, that at the very time of the execution of the gift deed, Ex. 45 the appellant knew that her husband prevailed upon her to convey survey plots Nos. 407/1 and 409/1 of Tadavalga village to him by undue influence. The finding of the trial court is based upon the admission of the appellant herself in the course of her evidence. In view of this finding of the trial court it is manifest that the suit of the appellant is barred under Art 91 of the Limitation Act so far as plots Nos. 407/1 and 409/1 of Tadavalga village are concerned.
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Kesri Commissariat and Ors Vs. Ministry of Food and Civil Supplies, Govt. of Maharashtra, Mumbai and Anr
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v. State of Maharashtra & Anr (1998) 2 SCC 1 ), came to hold as follows: - ?The above discussion is relevant because we must understand the reason why Section 3(1)(b) came to be enacted. As stated above, in our view, with the offer of an economic package to the landlords, the legislature has tried to maintain a balance. The provisions of the earlier Rent Act, as stated above, have become vulnerable, unreasonable and arbitrary with the passage of time as held by this Court in the above judgment. The legislature was aware of the said judgment. It is reflected in the report of the Joint Committee. In our view, the changes made in the present Rent Act by which landlords are permitted to charge premium, the provisions by which cash-rich entities are excluded from the protection of the Rent Act and the provision providing for annual increase at a nominal rate of 5% are structural changes brought about by the present Rent Act, 1999 vis-à-vis the 1947 Act. The Rent Act of 1999 is the sequel to the judgment of this Court in Malpe Vishwanath Acharya. The entire discussion hereinabove is, therefore, not only to go behind Section 3(1)(b) and ascertain the reasons for enactment of the said clause but also to enable this Court to give purposive interpretation to the said clause.? After so stating, the two-Judge Bench speaking, through S.H. Kapadia, J. (as His Lordship then was), observed as follows: - ?73. Moreover, if we are to hold that PSUs do not include government companies, as held by the High Court, we would be disturbing the package offered by the legislature of allowing increase of rent annually at 5%, allowing the landlords to accept premium and exclusion of certain entities from the protection of the Rent Act under Section 3 (1) (b). On the other hand, acceptance of the arguments advanced on behalf of the respondents on the interpretation of Section 3(1)(b) would make the Act vulnerable to challenge as violative of Article 14 of the Constitution. Therefore, we are of the view that on a plain meaning of the word ‘PSUs? as understood by the legislature, it is clear that India?s PSUs are in the form of statutory corporations, public sector companies, government companies and companies in which the public are substantially interested (see the Income Tax Act, 1961). When the word PSU is mentioned in Section 3 (1) (b), the State Legislature is presumed to know the recommendations of the various Parliamentary Committees on PSUs. These entities are basically cash-rich entities. They have positive net asset value. They have positive net worths. They can afford to pay rents at the market rate. 74. Thirdly, we are of the view that, in this case, the principle of noscitur a sociis is clearly applicable. According to this principle, when two or more words which are susceptible to analogous meanings are coupled together, the words can take their colour from each other. Applying this test, we hold that Section 3(1)(b) clearly applies to different categories of tenants, all of whom are capable of paying rent at market rates. Multinational companies, international agencies, statutory corporations, government companies, public sector companies can certainly afford to pay rent at the market rates. This thought is further highlighted by the last category in Section 3(1)(b). Private limited companies and public limited companies having a paid-up share capital of more than Rs.1,00,00,000 are excluded from the protection of the Rent Act. This further supports the view which we have taken that each and every entity mentioned in Section 3(1)(b) can afford to pay rent at the market rates. xxx xxx xxx 76. As stated above, Section 3(1)(b) strikes a balance between the interest of the landlords and the tenants; it is neither pro-landlords nor anti-tenants. It is pro-public interest. In this connection, one must keep in mind the fact that the said Rent Act, 1999 involves a structural change vis-à-vis the Bombay Rent Act, 1947. As stated above, with the passage of time, the 1947 Act became vulnerable to challenge as violative of Article 14. As stated above, the legislature has to strive to balance the twin objectives of Rent Act protection and rent restriction for those who cannot afford to pay rents at the market rates. 77. To accept the interpretation advanced on behalf of the respondents for excluding government companies from the meaning of the word ‘PSUs? in Section 3(1)(b) would amount to disturbing the neat balance struck by the legislature.? 22. From the aforesaid it is graphically clear that an Insurance Company is not protected under the 1999 Act. Once it is held that defendant No. 1, the New India Assurance Company, the original tenant, is not protected, the question would be whether a subtenant can be protected under the Act. In the case of Bhatia Co-operative Housing Society Ltd. (supra), it has been clearly laid down that Section 4(1) of the 1947 Act applies to premises and not to parties or their relationship. Section 3 uses the term ‘premises?. The provision commences with the non-obstante clause that the Act does not apply to any premises belonging to the Government or a local authority. Sub-section 3(1)(b) makes it clear that the Act does not apply to any bank, public sector undertaking or certain other categories of tenants. The Insurance Company is covered under Section 3(1)(b). Thus, as a logical corollary, the Act does not apply to the premises held by the Insurance Company who is a tenant.23. The learned Single Judge has allowed protection to the Government Department on the foundation that it has become a tenant. We are disposed to think that the analysis is fundamentally erroneous. When the Act does not cover the tenant, namely, the Insurance Company as basically the exemption applies only to premises and not to any relationship, the subtenant who becomes a deemed tenant cannot enjoy a better protection or privilege by ostracizing the concept of premises which is the spine of the provision.
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1[ds]22. From the aforesaid it is graphically clear that an Insurance Company is not protected under the 1999 Act. Once it is held that defendant No. 1, the New India Assurance Company, the original tenant, is not protected, the question would be whether a subtenant can be protected under the Act. In the case of Bhatia Co-operative Housing Society Ltd. (supra), it has been clearly laid down that Section 4(1) of the 1947 Act applies to premises and not to parties or their relationship. Section 3 uses the term ‘premises?. The provision commences with the non-obstante clause that the Act does not apply to any premises belonging to the Government or a local authority. Sub-section 3(1)(b) makes it clear that the Act does not apply to any bank, public sector undertaking or certain other categories of tenants. The Insurance Company is covered under Section 3(1)(b). Thus, as a logical corollary, the Act does not apply to the premises held by the Insurance Company who is a tenant.23. The learned Single Judge has allowed protection to the Government Department on the foundation that it has become a tenant. We are disposed to think that the analysis is fundamentally erroneous. When the Act does not cover the tenant, namely, the Insurance Company as basically the exemption applies only to premises and not to any relationship, the subtenant who becomes a deemed tenant cannot enjoy a better protection or privilege by ostracizing the concept of premises which is the spine of the provision.
| 1 | 6,485 | 298 |
### 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:
v. State of Maharashtra & Anr (1998) 2 SCC 1 ), came to hold as follows: - ?The above discussion is relevant because we must understand the reason why Section 3(1)(b) came to be enacted. As stated above, in our view, with the offer of an economic package to the landlords, the legislature has tried to maintain a balance. The provisions of the earlier Rent Act, as stated above, have become vulnerable, unreasonable and arbitrary with the passage of time as held by this Court in the above judgment. The legislature was aware of the said judgment. It is reflected in the report of the Joint Committee. In our view, the changes made in the present Rent Act by which landlords are permitted to charge premium, the provisions by which cash-rich entities are excluded from the protection of the Rent Act and the provision providing for annual increase at a nominal rate of 5% are structural changes brought about by the present Rent Act, 1999 vis-à-vis the 1947 Act. The Rent Act of 1999 is the sequel to the judgment of this Court in Malpe Vishwanath Acharya. The entire discussion hereinabove is, therefore, not only to go behind Section 3(1)(b) and ascertain the reasons for enactment of the said clause but also to enable this Court to give purposive interpretation to the said clause.? After so stating, the two-Judge Bench speaking, through S.H. Kapadia, J. (as His Lordship then was), observed as follows: - ?73. Moreover, if we are to hold that PSUs do not include government companies, as held by the High Court, we would be disturbing the package offered by the legislature of allowing increase of rent annually at 5%, allowing the landlords to accept premium and exclusion of certain entities from the protection of the Rent Act under Section 3 (1) (b). On the other hand, acceptance of the arguments advanced on behalf of the respondents on the interpretation of Section 3(1)(b) would make the Act vulnerable to challenge as violative of Article 14 of the Constitution. Therefore, we are of the view that on a plain meaning of the word ‘PSUs? as understood by the legislature, it is clear that India?s PSUs are in the form of statutory corporations, public sector companies, government companies and companies in which the public are substantially interested (see the Income Tax Act, 1961). When the word PSU is mentioned in Section 3 (1) (b), the State Legislature is presumed to know the recommendations of the various Parliamentary Committees on PSUs. These entities are basically cash-rich entities. They have positive net asset value. They have positive net worths. They can afford to pay rents at the market rate. 74. Thirdly, we are of the view that, in this case, the principle of noscitur a sociis is clearly applicable. According to this principle, when two or more words which are susceptible to analogous meanings are coupled together, the words can take their colour from each other. Applying this test, we hold that Section 3(1)(b) clearly applies to different categories of tenants, all of whom are capable of paying rent at market rates. Multinational companies, international agencies, statutory corporations, government companies, public sector companies can certainly afford to pay rent at the market rates. This thought is further highlighted by the last category in Section 3(1)(b). Private limited companies and public limited companies having a paid-up share capital of more than Rs.1,00,00,000 are excluded from the protection of the Rent Act. This further supports the view which we have taken that each and every entity mentioned in Section 3(1)(b) can afford to pay rent at the market rates. xxx xxx xxx 76. As stated above, Section 3(1)(b) strikes a balance between the interest of the landlords and the tenants; it is neither pro-landlords nor anti-tenants. It is pro-public interest. In this connection, one must keep in mind the fact that the said Rent Act, 1999 involves a structural change vis-à-vis the Bombay Rent Act, 1947. As stated above, with the passage of time, the 1947 Act became vulnerable to challenge as violative of Article 14. As stated above, the legislature has to strive to balance the twin objectives of Rent Act protection and rent restriction for those who cannot afford to pay rents at the market rates. 77. To accept the interpretation advanced on behalf of the respondents for excluding government companies from the meaning of the word ‘PSUs? in Section 3(1)(b) would amount to disturbing the neat balance struck by the legislature.? 22. From the aforesaid it is graphically clear that an Insurance Company is not protected under the 1999 Act. Once it is held that defendant No. 1, the New India Assurance Company, the original tenant, is not protected, the question would be whether a subtenant can be protected under the Act. In the case of Bhatia Co-operative Housing Society Ltd. (supra), it has been clearly laid down that Section 4(1) of the 1947 Act applies to premises and not to parties or their relationship. Section 3 uses the term ‘premises?. The provision commences with the non-obstante clause that the Act does not apply to any premises belonging to the Government or a local authority. Sub-section 3(1)(b) makes it clear that the Act does not apply to any bank, public sector undertaking or certain other categories of tenants. The Insurance Company is covered under Section 3(1)(b). Thus, as a logical corollary, the Act does not apply to the premises held by the Insurance Company who is a tenant.23. The learned Single Judge has allowed protection to the Government Department on the foundation that it has become a tenant. We are disposed to think that the analysis is fundamentally erroneous. When the Act does not cover the tenant, namely, the Insurance Company as basically the exemption applies only to premises and not to any relationship, the subtenant who becomes a deemed tenant cannot enjoy a better protection or privilege by ostracizing the concept of premises which is the spine of the provision.
### Response:
1
### Explanation:
22. From the aforesaid it is graphically clear that an Insurance Company is not protected under the 1999 Act. Once it is held that defendant No. 1, the New India Assurance Company, the original tenant, is not protected, the question would be whether a subtenant can be protected under the Act. In the case of Bhatia Co-operative Housing Society Ltd. (supra), it has been clearly laid down that Section 4(1) of the 1947 Act applies to premises and not to parties or their relationship. Section 3 uses the term ‘premises?. The provision commences with the non-obstante clause that the Act does not apply to any premises belonging to the Government or a local authority. Sub-section 3(1)(b) makes it clear that the Act does not apply to any bank, public sector undertaking or certain other categories of tenants. The Insurance Company is covered under Section 3(1)(b). Thus, as a logical corollary, the Act does not apply to the premises held by the Insurance Company who is a tenant.23. The learned Single Judge has allowed protection to the Government Department on the foundation that it has become a tenant. We are disposed to think that the analysis is fundamentally erroneous. When the Act does not cover the tenant, namely, the Insurance Company as basically the exemption applies only to premises and not to any relationship, the subtenant who becomes a deemed tenant cannot enjoy a better protection or privilege by ostracizing the concept of premises which is the spine of the provision.
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SVG FASHIONS PVT. LTD. (EARLIER KNOWN AS SVG FASHIONS LTD Vs. RITU MURLI MANOHAR GOYAL & ANR
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Code) was barred by limitation, the operational creditor has come up with the present appeal. 2. We have heard the learned counsel for the appellant--operational creditor; the learned counsel for the first respondent--shareholder and Director of the corporate--debtor and the learned counsel for the second respondent--Interim Resolution Professional. 3. The appellant herein filed an application under Section 9 of the Code on 20.04.2018 against M/S Arpita Filaments Private Limited, contending inter alia: that the corporate--debtor started having business dealings with them from 2013; that they sold and delivered various fabrics to the corporate--debtor; that the corporate--debtor was irregular in making payments as per the bills; and that the demand notice issued by them under Section 8 of the Code read with Rule 5 did not invoke any response. 4. Before NCLT, the corporate--debtor raised four major objections, one of which was that the claim was barred by limitation. But NCLT found on the basis of a letter dated 28.09.2015 produced by the operational creditor that six cheques had been issued in favour of the operational creditor. These cheques returned dishonoured when presented for payment. The stand taken by the corporate--debtor was that those six cheques were lost by the corporate--debtor in March 2017 and that they had already issued stop payment instructions to the bank on 4.03.2017. The corporate--debtor also claimed that the letter dated 28.09.2015 relied upon by the operational creditor was issued by Shree Adeshwar Textiles and that therefore, the operational creditor cannot rely upon the same to save limitation. 5. However, the NCLT, by an order dated 26.09.2019 overruled the objections and held that there was an acknowledgment of liability on the part of the corporate--debtor and that therefore, the application was within the period of limitation. Consequently, the NCLT ordered the admission of the application under Section 9 of the Code and also declared moratorium in terms of Section 14. 6. On an appeal filed by the appellant, the NCLAT held that the debt arose during the period from 11.08.2013 to 02.09.2013 and that the six cheques purportedly issued towards part payment of the liability having been issued on 5.12.2017, will not save limitation. The NCLAT further held that even if the date of default is taken to be 7.10.2013 as pleaded by the operational creditor, the acknowledgment of liability in terms of Section 18 of the Limitation Act ought to have happened on or before 07.10.2016. But the cheques were dated December 2017 and hence NCLAT reversed the decision of NCLT and dismissed the application of the operational creditor. 7. But we find from the order of NCLAT that there was no discussion at all about the letter dated 28.09.2015. According to the operational creditor, the six cheques in question were handed over along with the letter dated 28.09.2015. The cheque numbers and the bank on which the cheques were drawn, given in the letter dated 28.09.2015 tallied with the particulars of those six cheques allegedly lost by the corporate debtor in March 2017. Though the first respondent herein clamed in his affidavit in reply that the corporate-debtor had issued stop payment instructions, he conceded that the acknowledgment issued by the banker contained the date 01.01.2018. The following extract from the affidavit in reply/objections of the Director of the corporate--debtor makes an interesting reading: ...Hereto annexed and marked collectively as Annexure-C are copies of the intimation issued by the banker of the Corporate Debtor duly recording the instruction of stop payment qua the cheques in question taking record that the cheques had been lost. It is submitted that the banker of the Corporate Debtor has issued such notices acknowledging stop payment instruction on account of loss of the cheques on 04/03/2017, however inadvertently due to the error in the computers of the banker, the date on the top right shows as 01/01/2018. the Corporate Debtor in the process of obtaining appropriate letter from the banker of the Corporate Debtor to the effect that the error in the date has occurred due to some problem in the computers of the banker, and the Corporate Debtor craves leave to produce copy of the same as and when referred to and relied upon and available with the Corporate Debtor from the banker. 8. Unfortunately NCLAT completely overlooked the pleadings revolving around the letter dated 28.09.2015 and the six cheques. The failure of the NCLAT as the first appellate authority to look into a very vital aspect such as this, vitiates its order, especially when NCLT has recorded a specific finding of fact on this. 9. It is needless to point out that the law relating to the applicability of Section 18 of the Limitation Act, 1963 is fairly well settled. In Jignesh Shah and Another vs. Union of India and Another (2019) 10 SCC 750, this Court pointed out that when time begins to run, it can only be extended in the manner provided in the Limitation Act. For holding so this Court made a reference to Section 18 of the Limitation Act. Though in Babu Lal Vardharji Gurjar vs. Veer Gurjar Aluminium Industries Private Limited and Another (2020) 15 SCC 1, a two member Bench of this Court held that the reference in Jignesh Shah (supra) to Section 18 of the Limitation Act was only illustrative and that the ratio in B.K. Educational Services Private Limited vs. Parag Gupta and Associates (2019) 11 SCC 633 did not stand altered by Jignesh Shah, no discordant note was struck. But the cloud of doubt created by Babu Lal (supra) was cleared subsequently in Laxmi Pat Surana vs. Union Bank of India And Another (2021) 8 SCC 481 . In Asset Reconstruction Company (India) Limited vs. Bishal Jaiswal and Another (2021) 6 SCC 366, this Court, while applying Section 18 of the Limitation Act, even went to the extent of holding that an entry in the balance sheet of the company could also be treated as an acknowledgment in writing, subject however to any caveat found in the accompanying reports.
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1[ds]7. But we find from the order of NCLAT that there was no discussion at all about the letter dated 28.09.2015. According to the operational creditor, the six cheques in question were handed over along with the letter dated 28.09.2015. The cheque numbers and the bank on which the cheques were drawn, given in the letter dated 28.09.2015 tallied with the particulars of those six cheques allegedly lost by the corporate debtor in March 2017. Though the first respondent herein clamed in his affidavit in reply that the corporate-debtor had issued stop payment instructions, he conceded that the acknowledgment issued by the banker contained the date 01.01.2018.8. Unfortunately NCLAT completely overlooked the pleadings revolving around the letter dated 28.09.2015 and the six cheques. The failure of the NCLAT as the first appellate authority to look into a very vital aspect such as this, vitiates its order, especially when NCLT has recorded a specific finding of fact on this.9. It is needless to point out that the law relating to the applicability of Section 18 of the Limitation Act, 1963 is fairly well settled. In Jignesh Shah and Another vs. Union of India and Another (2019) 10 SCC 750, this Court pointed out that when time begins to run, it can only be extended in the manner provided in the Limitation Act. For holding so this Court made a reference to Section 18 of the Limitation Act. Though in Babu Lal Vardharji Gurjar vs. Veer Gurjar Aluminium Industries Private Limited and Another (2020) 15 SCC 1, a two member Bench of this Court held that the reference in Jignesh Shah (supra) to Section 18 of the Limitation Act was only illustrative and that the ratio in B.K. Educational Services Private Limited vs. Parag Gupta and Associates (2019) 11 SCC 633 did not stand altered by Jignesh Shah, no discordant note was struck. But the cloud of doubt created by Babu Lal (supra) was cleared subsequently in Laxmi Pat Surana vs. Union Bank of India And Another (2021) 8 SCC 481 . In Asset Reconstruction Company (India) Limited vs. Bishal Jaiswal and Another (2021) 6 SCC 366, this Court, while applying Section 18 of the Limitation Act, even went to the extent of holding that an entry in the balance sheet of the company could also be treated as an acknowledgment in writing, subject however to any caveat found in the accompanying reports.
| 1 | 1,177 | 449 |
### 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:
Code) was barred by limitation, the operational creditor has come up with the present appeal. 2. We have heard the learned counsel for the appellant--operational creditor; the learned counsel for the first respondent--shareholder and Director of the corporate--debtor and the learned counsel for the second respondent--Interim Resolution Professional. 3. The appellant herein filed an application under Section 9 of the Code on 20.04.2018 against M/S Arpita Filaments Private Limited, contending inter alia: that the corporate--debtor started having business dealings with them from 2013; that they sold and delivered various fabrics to the corporate--debtor; that the corporate--debtor was irregular in making payments as per the bills; and that the demand notice issued by them under Section 8 of the Code read with Rule 5 did not invoke any response. 4. Before NCLT, the corporate--debtor raised four major objections, one of which was that the claim was barred by limitation. But NCLT found on the basis of a letter dated 28.09.2015 produced by the operational creditor that six cheques had been issued in favour of the operational creditor. These cheques returned dishonoured when presented for payment. The stand taken by the corporate--debtor was that those six cheques were lost by the corporate--debtor in March 2017 and that they had already issued stop payment instructions to the bank on 4.03.2017. The corporate--debtor also claimed that the letter dated 28.09.2015 relied upon by the operational creditor was issued by Shree Adeshwar Textiles and that therefore, the operational creditor cannot rely upon the same to save limitation. 5. However, the NCLT, by an order dated 26.09.2019 overruled the objections and held that there was an acknowledgment of liability on the part of the corporate--debtor and that therefore, the application was within the period of limitation. Consequently, the NCLT ordered the admission of the application under Section 9 of the Code and also declared moratorium in terms of Section 14. 6. On an appeal filed by the appellant, the NCLAT held that the debt arose during the period from 11.08.2013 to 02.09.2013 and that the six cheques purportedly issued towards part payment of the liability having been issued on 5.12.2017, will not save limitation. The NCLAT further held that even if the date of default is taken to be 7.10.2013 as pleaded by the operational creditor, the acknowledgment of liability in terms of Section 18 of the Limitation Act ought to have happened on or before 07.10.2016. But the cheques were dated December 2017 and hence NCLAT reversed the decision of NCLT and dismissed the application of the operational creditor. 7. But we find from the order of NCLAT that there was no discussion at all about the letter dated 28.09.2015. According to the operational creditor, the six cheques in question were handed over along with the letter dated 28.09.2015. The cheque numbers and the bank on which the cheques were drawn, given in the letter dated 28.09.2015 tallied with the particulars of those six cheques allegedly lost by the corporate debtor in March 2017. Though the first respondent herein clamed in his affidavit in reply that the corporate-debtor had issued stop payment instructions, he conceded that the acknowledgment issued by the banker contained the date 01.01.2018. The following extract from the affidavit in reply/objections of the Director of the corporate--debtor makes an interesting reading: ...Hereto annexed and marked collectively as Annexure-C are copies of the intimation issued by the banker of the Corporate Debtor duly recording the instruction of stop payment qua the cheques in question taking record that the cheques had been lost. It is submitted that the banker of the Corporate Debtor has issued such notices acknowledging stop payment instruction on account of loss of the cheques on 04/03/2017, however inadvertently due to the error in the computers of the banker, the date on the top right shows as 01/01/2018. the Corporate Debtor in the process of obtaining appropriate letter from the banker of the Corporate Debtor to the effect that the error in the date has occurred due to some problem in the computers of the banker, and the Corporate Debtor craves leave to produce copy of the same as and when referred to and relied upon and available with the Corporate Debtor from the banker. 8. Unfortunately NCLAT completely overlooked the pleadings revolving around the letter dated 28.09.2015 and the six cheques. The failure of the NCLAT as the first appellate authority to look into a very vital aspect such as this, vitiates its order, especially when NCLT has recorded a specific finding of fact on this. 9. It is needless to point out that the law relating to the applicability of Section 18 of the Limitation Act, 1963 is fairly well settled. In Jignesh Shah and Another vs. Union of India and Another (2019) 10 SCC 750, this Court pointed out that when time begins to run, it can only be extended in the manner provided in the Limitation Act. For holding so this Court made a reference to Section 18 of the Limitation Act. Though in Babu Lal Vardharji Gurjar vs. Veer Gurjar Aluminium Industries Private Limited and Another (2020) 15 SCC 1, a two member Bench of this Court held that the reference in Jignesh Shah (supra) to Section 18 of the Limitation Act was only illustrative and that the ratio in B.K. Educational Services Private Limited vs. Parag Gupta and Associates (2019) 11 SCC 633 did not stand altered by Jignesh Shah, no discordant note was struck. But the cloud of doubt created by Babu Lal (supra) was cleared subsequently in Laxmi Pat Surana vs. Union Bank of India And Another (2021) 8 SCC 481 . In Asset Reconstruction Company (India) Limited vs. Bishal Jaiswal and Another (2021) 6 SCC 366, this Court, while applying Section 18 of the Limitation Act, even went to the extent of holding that an entry in the balance sheet of the company could also be treated as an acknowledgment in writing, subject however to any caveat found in the accompanying reports.
### Response:
1
### Explanation:
7. But we find from the order of NCLAT that there was no discussion at all about the letter dated 28.09.2015. According to the operational creditor, the six cheques in question were handed over along with the letter dated 28.09.2015. The cheque numbers and the bank on which the cheques were drawn, given in the letter dated 28.09.2015 tallied with the particulars of those six cheques allegedly lost by the corporate debtor in March 2017. Though the first respondent herein clamed in his affidavit in reply that the corporate-debtor had issued stop payment instructions, he conceded that the acknowledgment issued by the banker contained the date 01.01.2018.8. Unfortunately NCLAT completely overlooked the pleadings revolving around the letter dated 28.09.2015 and the six cheques. The failure of the NCLAT as the first appellate authority to look into a very vital aspect such as this, vitiates its order, especially when NCLT has recorded a specific finding of fact on this.9. It is needless to point out that the law relating to the applicability of Section 18 of the Limitation Act, 1963 is fairly well settled. In Jignesh Shah and Another vs. Union of India and Another (2019) 10 SCC 750, this Court pointed out that when time begins to run, it can only be extended in the manner provided in the Limitation Act. For holding so this Court made a reference to Section 18 of the Limitation Act. Though in Babu Lal Vardharji Gurjar vs. Veer Gurjar Aluminium Industries Private Limited and Another (2020) 15 SCC 1, a two member Bench of this Court held that the reference in Jignesh Shah (supra) to Section 18 of the Limitation Act was only illustrative and that the ratio in B.K. Educational Services Private Limited vs. Parag Gupta and Associates (2019) 11 SCC 633 did not stand altered by Jignesh Shah, no discordant note was struck. But the cloud of doubt created by Babu Lal (supra) was cleared subsequently in Laxmi Pat Surana vs. Union Bank of India And Another (2021) 8 SCC 481 . In Asset Reconstruction Company (India) Limited vs. Bishal Jaiswal and Another (2021) 6 SCC 366, this Court, while applying Section 18 of the Limitation Act, even went to the extent of holding that an entry in the balance sheet of the company could also be treated as an acknowledgment in writing, subject however to any caveat found in the accompanying reports.
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LAXMI CHAUDHARY Vs. SAHIB SINGH CHAUDHARY
|
BANUMATHI, J.: 1. Leave granted. 2. This appeal arises out of an order dated 4 th December, 2018 passed by the High Court of Delhi at New Delhi in CM NO.50677 of 2018 in R.F.A. No.699 of 2018 in and by which the High Court has vacated the stay granted in favour of the appellant-tenant on the ground of non-compliance of the conditional order passed by the High Court. 3. The facts of the case in a nutshell are as follows. The respondent-plaintiff-landlord filed a suit for eviction and recovery of damages and mesne profit against the appellant- defendant-tenant in regard to the tenanted property comprising basement and the second floor in J-1/72 in Gupta Colony, New Delhi.. The Trial court by its judgment dated 21 st December, 2017 decreed the suit in favour of the respondent-landlord and ordered eviction. The Trial Court further awarded the damages payable to the respondent-landlord at the rate of Rs.20,000/- per month w.e.f. 17 th January, 2008 till the delivery of the possession of the property. The Trial Court also granted permanent injunction in favour of the respondent-plaintiff. 4. The appellant-defendant preferred appeal before the High Court. By order dated 27 th August, 2018, the High Court admitted the appeal and granted stay of the order of the Trial court subject to the appellant?s paying the damages for use and occupation at the rate of Rs.7,500/- per month from 17 th January, 2008 till 31 st December, 2017 and thereafter at the rate of Rs.15,000/- w.e.f. 1 st January, 2018, payable by 30 th day of each calendar month. The High Court also directed that in case of delay of payment, interest at the rate of 6% per annum is payable by the appellant to the respondent. The appellant could not comply with the condition as ordered by the High Court and, therefore, by the impugned Order dated 4 th December, 2018, the High Court has vacated the stay granted in favour of the appellant-defendant. Being aggrieved, the appellant-defendant has preferred this appeal. 5. By Order dated 18 th January, 2019, this Court has directed the appellant to pay the arrears of Rs.10,80,000/- and also to pay Rs.15,000/- from 1 st January, 2018. By Order dated 8 th February, 2019, the said order was modified directing the appellant to deposit amount of Rs.15,000/- before the High Court. In compliance of the order of this Court dated 18 th January, 2019, without prejudice to her contentions, the appellant has deposited Rs.10,80,000/- before the High Court. Likewise, the appellant-defendant has been depositing Rs.15,000/- as damages for use and occupation of premises viz., basement as well as the second floor and such deposit was without prejudice to her contentions in the eviction suit. 6. We have heard Mr. Rajan Kumar Chourasia, learned counsel appearing for the appellant-defendant-tenant and Mr. D.K. Sharma, learned counsel appearing for the respondent-plaintiff- landlord and also perused the impugned judgment and the materials on record. 7. Learned counsel for the respondent-landlord submitted that during the interregnum period the respondent-landlord has filed the execution petition and had taken possession of the basement on 5 th January, 2019, wherein the appellant was running a beauty parlour. 8. Admittedly, now the appellant is in possession of the residential premises, namely, the second floor.
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1[ds]8. Admittedly, now the appellant is in possession of the residential premises, namely, the second floor.
| 1 | 616 | 25 |
### 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:
BANUMATHI, J.: 1. Leave granted. 2. This appeal arises out of an order dated 4 th December, 2018 passed by the High Court of Delhi at New Delhi in CM NO.50677 of 2018 in R.F.A. No.699 of 2018 in and by which the High Court has vacated the stay granted in favour of the appellant-tenant on the ground of non-compliance of the conditional order passed by the High Court. 3. The facts of the case in a nutshell are as follows. The respondent-plaintiff-landlord filed a suit for eviction and recovery of damages and mesne profit against the appellant- defendant-tenant in regard to the tenanted property comprising basement and the second floor in J-1/72 in Gupta Colony, New Delhi.. The Trial court by its judgment dated 21 st December, 2017 decreed the suit in favour of the respondent-landlord and ordered eviction. The Trial Court further awarded the damages payable to the respondent-landlord at the rate of Rs.20,000/- per month w.e.f. 17 th January, 2008 till the delivery of the possession of the property. The Trial Court also granted permanent injunction in favour of the respondent-plaintiff. 4. The appellant-defendant preferred appeal before the High Court. By order dated 27 th August, 2018, the High Court admitted the appeal and granted stay of the order of the Trial court subject to the appellant?s paying the damages for use and occupation at the rate of Rs.7,500/- per month from 17 th January, 2008 till 31 st December, 2017 and thereafter at the rate of Rs.15,000/- w.e.f. 1 st January, 2018, payable by 30 th day of each calendar month. The High Court also directed that in case of delay of payment, interest at the rate of 6% per annum is payable by the appellant to the respondent. The appellant could not comply with the condition as ordered by the High Court and, therefore, by the impugned Order dated 4 th December, 2018, the High Court has vacated the stay granted in favour of the appellant-defendant. Being aggrieved, the appellant-defendant has preferred this appeal. 5. By Order dated 18 th January, 2019, this Court has directed the appellant to pay the arrears of Rs.10,80,000/- and also to pay Rs.15,000/- from 1 st January, 2018. By Order dated 8 th February, 2019, the said order was modified directing the appellant to deposit amount of Rs.15,000/- before the High Court. In compliance of the order of this Court dated 18 th January, 2019, without prejudice to her contentions, the appellant has deposited Rs.10,80,000/- before the High Court. Likewise, the appellant-defendant has been depositing Rs.15,000/- as damages for use and occupation of premises viz., basement as well as the second floor and such deposit was without prejudice to her contentions in the eviction suit. 6. We have heard Mr. Rajan Kumar Chourasia, learned counsel appearing for the appellant-defendant-tenant and Mr. D.K. Sharma, learned counsel appearing for the respondent-plaintiff- landlord and also perused the impugned judgment and the materials on record. 7. Learned counsel for the respondent-landlord submitted that during the interregnum period the respondent-landlord has filed the execution petition and had taken possession of the basement on 5 th January, 2019, wherein the appellant was running a beauty parlour. 8. Admittedly, now the appellant is in possession of the residential premises, namely, the second floor.
### Response:
1
### Explanation:
8. Admittedly, now the appellant is in possession of the residential premises, namely, the second floor.
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H.V.Nirmala Vs. Karnataka State Financial Corpn
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regard, inter alia, to conditions of service without impinging upon the overriding power recognised under Article 310. In other words, in exercising the power conferred by Article 309, the extent of the pleasure recognised by Article 310 cannot be affected, or impaired. In fact, while stating the conclusions in the form of propositions, the said judgment has observed that the Parliament or the Legislature can make a law regulating the conditions of service without affecting the powers of the President or the Governor under Article 310 read with Article 311. It has also been stated at the same place that the power to dismiss a public servant at pleasure is outside the scope of Article 154 and, therefore, cannot be delegated by the Governor to a subordinate officer and can be exercised by him only in the manner prescribed by the Constitution. In the context, it would be clear that this latter observation is not intended to lay down that a law cannot be made under Article 309 or a rule cannot be framed under the proviso to the said article prescribing the procedure by which, and the authority by whom, the said pleasure can be exercised. This observation which is mentioned as proposition number (2) must be read along with the subsequent propositions specified as (3), (4), (5) and (6). The only point made is that whatever is done under Article 309 must be subject to the pleasure prescribed by Article 310." In Rattan Lal Sharma vs. Managing Committee, Dr. Hari Ram (Co-education) Higher Secondary School : (1993) 4 SCC 10 it was held : "But if the plea though not specifically raised before the subordinate tribunals or the administrative and quasi- judicial bodies, is raised before the High Court in the writ proceeding for the first time and the plea goes to the root of the question and is based on admitted and uncontroverted facts and does not require any further investigation into a question of fact, the High Court is not only justified in entertaining the plea but in the anxiety to do justice which is the paramount consideration of the court, it is only desirable that a litigant should not be shut out from raising such plea which goes to the root of the lis involved." The said decisions, to our mind, are not applicable to the fact of the present case.15. Appellant himself has quoted the said Regulation which was corrected merely upto 31st October, 1991. On the other hand, Ms. Suri has produced the Regulation which is said to be applicable at the relevant point of time, in terms whereof not only an officer of the Corporation but also any authority as listed in the panel approved for the purpose could have been appointed as an Enquiry Officer. However, the Regulation, which was produced by Ms. Suri is corrected upto 1st April, 2002, but it is not clear as to whether the necessary amendment has been carried out prior to 14th July, 1996 or not. We hope that the said assertion of the learned counsel is correct. We are, however, in this case proceed on the basis that Regulation 41(3) remained unchanged and according to learned counsel in terms of the Regulation which was prevalent at the relevant point of time, an outsider could have been appointed as the Enquiry Officer. 16. In Central Bank of India (1991) 1 SCC 319 (supra) also this Court held that an Enquiry Officer need not be an officer of the Bank as even a third party can be appointed an Enquiry Officer to enquire into the conduct of an employee. What was, however, emphasised was that a non-official cannot act as a disciplinary authority and pass an order of punishment against the delinquent employee. It is in that view of the matter it was held that a retired employee could not act as a disciplinary authority. 17. We may, however, notice that in a case of this nature where appointment of the Enquiry Officer may have something to do only for carrying out the procedural aspect of the mater, strict adherence to the Rules may not be insisted upon. Superior courts in a case of this nature may not permit such a question to be raised for the first time. (See - Sohan Singh and others vs. The General Manager, Ordnance Factory, Khamaraia, Jabalpur and others : AIR 1981 SC 1862 ). 18. Prejudice doctrine, in our opinion, may also be applied in such a contingency. We, therefore, are of the opinion that the first contention of Mr. Patil has no merit.19. Submission of Mr. Patil that the Managing Director could not have directed the proceeding to be placed before the Board, in our opinion, has equally no merit. Appointing authority of Class `A Officers is the Board. Managing Director is the disciplinary authority only in respect of minor punishments. When a major punishment is proposed to be imposed, the Board of Directors alone will have the jurisdiction to consider the gravity of the alleged misconduct so as to enable it to pass an appropriate order. It is idle to contend that had Managing Director passed an order, an appeal could have been preferred thereagainst. If the entire Board is the appropriate authority for taking a decision, it is only that authority which was required to take decision and not any other. (See Indian Airlines Ltd. vs. Prabha D, Kanan : (2006) 11 SC 67) .20. For the said purpose an express provision in the Regulation was not imperative. Managing Director of the Corporation initiated a proceeding but he could not impose a major penalty and in that view of the matter he will have the incidental power to place the findings of the Enquiry Officer before the Board. Such an incidental power must be held to be existing with all the statutory authorities. Absence of any Rule as is obtaining in Rule 13 of the CCS (CCA) Rules would not, in our opinion, vitiate the proceeding.
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0[ds]18. Prejudice doctrine, in our opinion, may also be applied in such a contingency. We, therefore, are of the opinion that the first contention of Mr. Patil has no merit.19. Submission of Mr. Patil that the Managing Director could not have directed the proceeding to be placed before the Board, in our opinion, has equally no merit. Appointing authority of Class `A Officers is the Board. Managing Director is the disciplinary authority only in respect of minor punishments. When a major punishment is proposed to be imposed, the Board of Directors alone will have the jurisdiction to consider the gravity of the alleged misconduct so as to enable it to pass an appropriate order. It is idle to contend that had Managing Director passed an order, an appeal could have been preferred thereagainst. If the entire Board is the appropriate authority for taking a decision, it is only that authority which was required to take decision and not any other. (See Indian Airlines Ltd. vs. Prabha D, Kanan : (2006) 11 SC 67) .20. For the said purpose an express provision in the Regulation was not imperative. Managing Director of the Corporation initiated a proceeding but he could not impose a major penalty and in that view of the matter he will have the incidental power to place the findings of the Enquiry Officer before the Board. Such an incidental power must be held to be existing with all the statutory authorities. Absence of any Rule as is obtaining in Rule 13 of the CCS (CCA) Rules would not, in our opinion, vitiate thedo not agree. Appointment of an incompetent enquiry officer may not vitiate the entire proceeding. Such a right can be waived. In relation thereto even the principle of Estoppel and Acquiescence wouldin the said decisions, applicability of the prejudice doctrine was not considered being not necessary to do so. Jurisdictional issue should be raised at the earliest possible opportunity. A disciplinary proceeding is not a judicial proceeding. It is a domestic tribunal. There exists a distinction between a domestic tribunal and a court. Appellant does not contend that any procedure in holding the enquiry has been violated or that there was no compliance of principles of naturaltherein also all consequential benefits were not given. In that case the Enquiry Officer had no jurisdiction at all. Even the defecto doctrine could not be applied as he was not the holder of the office but merely anwho could not have been appointed as an Enquirysaid decisions, to our mind, are not applicable to the fact of the present case.15. Appellant himself has quoted the said Regulation which was corrected merely upto 31st October,the Regulation, which was produced by Ms. Suri is corrected upto 1st April, 2002, but it is not clear as to whether the necessary amendment has been carried out prior to 14th July, 1996 or not. We hope that the said assertion of the learned counsel is correct. We are, however, in this case proceed on the basis that Regulation 41(3) remained unchanged and according to learned counsel in terms of the Regulation which was prevalent at the relevant point of time, an outsider could have been appointed as the Enquiry Officer.We may, however, notice that in a case of this nature where appointment of the Enquiry Officer may have something to do only for carrying out the procedural aspect of the mater, strict adherence to the Rules may not be insisted upon. Superior courts in a case of this nature may not permit such a question to be raised for the first time. (SeeSohan Singh and others vs. The General Manager, Ordnance Factory, Khamaraia, Jabalpur and others : AIR 1981 SC 1862 ).Prejudice doctrine, in our opinion, may also be applied in such a contingency. We, therefore, are of the opinion that the first contention of Mr. Patil has no merit.
| 0 | 3,701 | 726 |
### 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:
regard, inter alia, to conditions of service without impinging upon the overriding power recognised under Article 310. In other words, in exercising the power conferred by Article 309, the extent of the pleasure recognised by Article 310 cannot be affected, or impaired. In fact, while stating the conclusions in the form of propositions, the said judgment has observed that the Parliament or the Legislature can make a law regulating the conditions of service without affecting the powers of the President or the Governor under Article 310 read with Article 311. It has also been stated at the same place that the power to dismiss a public servant at pleasure is outside the scope of Article 154 and, therefore, cannot be delegated by the Governor to a subordinate officer and can be exercised by him only in the manner prescribed by the Constitution. In the context, it would be clear that this latter observation is not intended to lay down that a law cannot be made under Article 309 or a rule cannot be framed under the proviso to the said article prescribing the procedure by which, and the authority by whom, the said pleasure can be exercised. This observation which is mentioned as proposition number (2) must be read along with the subsequent propositions specified as (3), (4), (5) and (6). The only point made is that whatever is done under Article 309 must be subject to the pleasure prescribed by Article 310." In Rattan Lal Sharma vs. Managing Committee, Dr. Hari Ram (Co-education) Higher Secondary School : (1993) 4 SCC 10 it was held : "But if the plea though not specifically raised before the subordinate tribunals or the administrative and quasi- judicial bodies, is raised before the High Court in the writ proceeding for the first time and the plea goes to the root of the question and is based on admitted and uncontroverted facts and does not require any further investigation into a question of fact, the High Court is not only justified in entertaining the plea but in the anxiety to do justice which is the paramount consideration of the court, it is only desirable that a litigant should not be shut out from raising such plea which goes to the root of the lis involved." The said decisions, to our mind, are not applicable to the fact of the present case.15. Appellant himself has quoted the said Regulation which was corrected merely upto 31st October, 1991. On the other hand, Ms. Suri has produced the Regulation which is said to be applicable at the relevant point of time, in terms whereof not only an officer of the Corporation but also any authority as listed in the panel approved for the purpose could have been appointed as an Enquiry Officer. However, the Regulation, which was produced by Ms. Suri is corrected upto 1st April, 2002, but it is not clear as to whether the necessary amendment has been carried out prior to 14th July, 1996 or not. We hope that the said assertion of the learned counsel is correct. We are, however, in this case proceed on the basis that Regulation 41(3) remained unchanged and according to learned counsel in terms of the Regulation which was prevalent at the relevant point of time, an outsider could have been appointed as the Enquiry Officer. 16. In Central Bank of India (1991) 1 SCC 319 (supra) also this Court held that an Enquiry Officer need not be an officer of the Bank as even a third party can be appointed an Enquiry Officer to enquire into the conduct of an employee. What was, however, emphasised was that a non-official cannot act as a disciplinary authority and pass an order of punishment against the delinquent employee. It is in that view of the matter it was held that a retired employee could not act as a disciplinary authority. 17. We may, however, notice that in a case of this nature where appointment of the Enquiry Officer may have something to do only for carrying out the procedural aspect of the mater, strict adherence to the Rules may not be insisted upon. Superior courts in a case of this nature may not permit such a question to be raised for the first time. (See - Sohan Singh and others vs. The General Manager, Ordnance Factory, Khamaraia, Jabalpur and others : AIR 1981 SC 1862 ). 18. Prejudice doctrine, in our opinion, may also be applied in such a contingency. We, therefore, are of the opinion that the first contention of Mr. Patil has no merit.19. Submission of Mr. Patil that the Managing Director could not have directed the proceeding to be placed before the Board, in our opinion, has equally no merit. Appointing authority of Class `A Officers is the Board. Managing Director is the disciplinary authority only in respect of minor punishments. When a major punishment is proposed to be imposed, the Board of Directors alone will have the jurisdiction to consider the gravity of the alleged misconduct so as to enable it to pass an appropriate order. It is idle to contend that had Managing Director passed an order, an appeal could have been preferred thereagainst. If the entire Board is the appropriate authority for taking a decision, it is only that authority which was required to take decision and not any other. (See Indian Airlines Ltd. vs. Prabha D, Kanan : (2006) 11 SC 67) .20. For the said purpose an express provision in the Regulation was not imperative. Managing Director of the Corporation initiated a proceeding but he could not impose a major penalty and in that view of the matter he will have the incidental power to place the findings of the Enquiry Officer before the Board. Such an incidental power must be held to be existing with all the statutory authorities. Absence of any Rule as is obtaining in Rule 13 of the CCS (CCA) Rules would not, in our opinion, vitiate the proceeding.
### Response:
0
### Explanation:
18. Prejudice doctrine, in our opinion, may also be applied in such a contingency. We, therefore, are of the opinion that the first contention of Mr. Patil has no merit.19. Submission of Mr. Patil that the Managing Director could not have directed the proceeding to be placed before the Board, in our opinion, has equally no merit. Appointing authority of Class `A Officers is the Board. Managing Director is the disciplinary authority only in respect of minor punishments. When a major punishment is proposed to be imposed, the Board of Directors alone will have the jurisdiction to consider the gravity of the alleged misconduct so as to enable it to pass an appropriate order. It is idle to contend that had Managing Director passed an order, an appeal could have been preferred thereagainst. If the entire Board is the appropriate authority for taking a decision, it is only that authority which was required to take decision and not any other. (See Indian Airlines Ltd. vs. Prabha D, Kanan : (2006) 11 SC 67) .20. For the said purpose an express provision in the Regulation was not imperative. Managing Director of the Corporation initiated a proceeding but he could not impose a major penalty and in that view of the matter he will have the incidental power to place the findings of the Enquiry Officer before the Board. Such an incidental power must be held to be existing with all the statutory authorities. Absence of any Rule as is obtaining in Rule 13 of the CCS (CCA) Rules would not, in our opinion, vitiate thedo not agree. Appointment of an incompetent enquiry officer may not vitiate the entire proceeding. Such a right can be waived. In relation thereto even the principle of Estoppel and Acquiescence wouldin the said decisions, applicability of the prejudice doctrine was not considered being not necessary to do so. Jurisdictional issue should be raised at the earliest possible opportunity. A disciplinary proceeding is not a judicial proceeding. It is a domestic tribunal. There exists a distinction between a domestic tribunal and a court. Appellant does not contend that any procedure in holding the enquiry has been violated or that there was no compliance of principles of naturaltherein also all consequential benefits were not given. In that case the Enquiry Officer had no jurisdiction at all. Even the defecto doctrine could not be applied as he was not the holder of the office but merely anwho could not have been appointed as an Enquirysaid decisions, to our mind, are not applicable to the fact of the present case.15. Appellant himself has quoted the said Regulation which was corrected merely upto 31st October,the Regulation, which was produced by Ms. Suri is corrected upto 1st April, 2002, but it is not clear as to whether the necessary amendment has been carried out prior to 14th July, 1996 or not. We hope that the said assertion of the learned counsel is correct. We are, however, in this case proceed on the basis that Regulation 41(3) remained unchanged and according to learned counsel in terms of the Regulation which was prevalent at the relevant point of time, an outsider could have been appointed as the Enquiry Officer.We may, however, notice that in a case of this nature where appointment of the Enquiry Officer may have something to do only for carrying out the procedural aspect of the mater, strict adherence to the Rules may not be insisted upon. Superior courts in a case of this nature may not permit such a question to be raised for the first time. (SeeSohan Singh and others vs. The General Manager, Ordnance Factory, Khamaraia, Jabalpur and others : AIR 1981 SC 1862 ).Prejudice doctrine, in our opinion, may also be applied in such a contingency. We, therefore, are of the opinion that the first contention of Mr. Patil has no merit.
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Manjit Singh @ Mange Vs. C.B.I
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or disruption of any supplies or services essential to the life of the community, or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act, commits a terrorist act. (2) Whoever commits a terrorist act, shall,— (i) if such act has resulted in the death of any person, be punishable with death or imprisonment for life and shall also be liable to fine; (ii) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. (3) Whoever conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of, a terrorist act or any act preparatory to a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. (4) Whoever harbours or conceals, or attempts to harbour or conceal, any terrorist shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. (5) Any person who is a member of a terrorists gang or a terrorist organisation, which is involved in terrorist acts, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. (6) Whoever holds any property derived or obtained from commission of any terrorist act or has been acquired through the terrorist funds shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. 85.Section 3 of the TADA Act gives due importance to the aspect of intent. The person who is alleged to be involved in a terrorist act can be charged under Section 3(1) only when the prosecution has been successful in establishing that the same was committed with the intent to awe the Government or to achieve one or the other ends mentioned under Section 3(1). The Designated Court, while dismissing the charges under the TADA Act, cited with approval the decision of this Court in Hitendra Vishnu Thakurv. State of Maharashtra, II (1994) CCR 604 (SC)=(1994) 4 SCC 602 . This Court made a distinction between the incidence of terror as a consequence of a particular act and causing terror being the sole intent of the same act. It is only in case of the latter that the provisions of Section 3(1) are attracted. It was held that: If it is only as a consequence of the criminal act that fear, terror or/and panic is caused but the intention of committing the particular crime cannot be said to be the one strictly envisaged by Section 3(1), it would be impermissible to try or convict and punish an accused under TADA. The commission of the crime with the intention to achieve the result as envisaged by the section and not merely where the consequence of the crime committed by the accused create that result, would attract the provisions of Section 3(1) of TADA. Thus, if for example a person goes on a shooting spree and kills a number of persons, it is bound to create terror and panic in the locality but if it was not committed with the requisite intention as contemplated by the Section, the offence would not attract Section 3(1) 86.In State v. Nalini (supra), a three-Judge Bench of this Court has quoted the dictum laid down in Hitendra Vishnu Thakur (supra) with approval and concluded thus: (See p.298 Para 51): 51. Thus the legal position remains unaltered that the crucial postulate for judging whether the offence is a terrorist act falling under TADA or not is whether it was done with the intent to overawe the Government as by law established or to strike terror in the people, etc. 87.In State of West Bengal v. Mohammed Khalid, (1995) 1 SCC 684 , referring to Corpus Juris Secundum (A Contemporary Statement of American Law, Vol 22 at pg 116), the meaning of intent was quoted as under: Intention— (a) In general (b) Specific or general intent crimes; An actual intent to commit the particular crime towards which the act moves is a necessary element of an attempt to commit a crime. Although the intent must be one in fact, not merely in law, and may not be inferred from the overt act alone, it may be inferred from the circumstances. 88.The prosecution in this case has argued that charge under Section 3 is maintainable in the light of the Bombay bomb blasts and the fact that L.D. Arora would have been pivotal in providing information regarding the smuggling of arms and explosives. The case before us concerns the murder of L.D. Arora. The prosecution has not been successful in proving that this particular murder was committed with the intention to cause terror. As mentioned earlier, terror could have been caused as a consequence of the act. The prosecution has stated that the main intention behind the murder of L.D. Arora was to prevent the names of Mohd. Dosa, Tahir Shah and others involved in smuggling of arms and explosives would not come to light during the investigations that followed the Bombay blast. It is, therefore, evident that the intention of the accused in the present case was not to cause terror but to prevent information regarding another crime from being divulged. In the light of these facts, we are of the opinion that the TADA Court was justified in dismissing the charges framed under the TADA Act. Therefore, appeals filed by the State for enhancement of sentence require to be dismissed.
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0[ds]88.The prosecution in this case has argued that charge under Section 3 is maintainable in the light of the Bombay bomb blasts and the fact that L.D. Arora would have been pivotal in providing information regarding the smuggling of arms and explosives. The case before us concerns the murder of L.D. Arora. The prosecution has not been successful in proving that this particular murder was committed with the intention to cause terror. As mentioned earlier, terror could have been caused as a consequence of the act. The prosecution has stated that the main intention behind the murder of L.D. Arora was to prevent the names of Mohd. Dosa, Tahir Shah and others involved in smuggling of arms and explosives would not come to light during the investigations that followed the Bombay blast. It is, therefore, evident that the intention of the accused in the present case was not to cause terror but to prevent information regarding another crime from being divulged. In the light of these facts, we are of the opinion that the TADA Court was justified in dismissing the charges framed under the TADA Act. Therefore, appeals filed by the State for enhancement of sentence require to be dismissed.
| 0 | 17,789 | 223 |
### 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:
or disruption of any supplies or services essential to the life of the community, or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act, commits a terrorist act. (2) Whoever commits a terrorist act, shall,— (i) if such act has resulted in the death of any person, be punishable with death or imprisonment for life and shall also be liable to fine; (ii) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. (3) Whoever conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of, a terrorist act or any act preparatory to a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. (4) Whoever harbours or conceals, or attempts to harbour or conceal, any terrorist shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. (5) Any person who is a member of a terrorists gang or a terrorist organisation, which is involved in terrorist acts, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. (6) Whoever holds any property derived or obtained from commission of any terrorist act or has been acquired through the terrorist funds shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. 85.Section 3 of the TADA Act gives due importance to the aspect of intent. The person who is alleged to be involved in a terrorist act can be charged under Section 3(1) only when the prosecution has been successful in establishing that the same was committed with the intent to awe the Government or to achieve one or the other ends mentioned under Section 3(1). The Designated Court, while dismissing the charges under the TADA Act, cited with approval the decision of this Court in Hitendra Vishnu Thakurv. State of Maharashtra, II (1994) CCR 604 (SC)=(1994) 4 SCC 602 . This Court made a distinction between the incidence of terror as a consequence of a particular act and causing terror being the sole intent of the same act. It is only in case of the latter that the provisions of Section 3(1) are attracted. It was held that: If it is only as a consequence of the criminal act that fear, terror or/and panic is caused but the intention of committing the particular crime cannot be said to be the one strictly envisaged by Section 3(1), it would be impermissible to try or convict and punish an accused under TADA. The commission of the crime with the intention to achieve the result as envisaged by the section and not merely where the consequence of the crime committed by the accused create that result, would attract the provisions of Section 3(1) of TADA. Thus, if for example a person goes on a shooting spree and kills a number of persons, it is bound to create terror and panic in the locality but if it was not committed with the requisite intention as contemplated by the Section, the offence would not attract Section 3(1) 86.In State v. Nalini (supra), a three-Judge Bench of this Court has quoted the dictum laid down in Hitendra Vishnu Thakur (supra) with approval and concluded thus: (See p.298 Para 51): 51. Thus the legal position remains unaltered that the crucial postulate for judging whether the offence is a terrorist act falling under TADA or not is whether it was done with the intent to overawe the Government as by law established or to strike terror in the people, etc. 87.In State of West Bengal v. Mohammed Khalid, (1995) 1 SCC 684 , referring to Corpus Juris Secundum (A Contemporary Statement of American Law, Vol 22 at pg 116), the meaning of intent was quoted as under: Intention— (a) In general (b) Specific or general intent crimes; An actual intent to commit the particular crime towards which the act moves is a necessary element of an attempt to commit a crime. Although the intent must be one in fact, not merely in law, and may not be inferred from the overt act alone, it may be inferred from the circumstances. 88.The prosecution in this case has argued that charge under Section 3 is maintainable in the light of the Bombay bomb blasts and the fact that L.D. Arora would have been pivotal in providing information regarding the smuggling of arms and explosives. The case before us concerns the murder of L.D. Arora. The prosecution has not been successful in proving that this particular murder was committed with the intention to cause terror. As mentioned earlier, terror could have been caused as a consequence of the act. The prosecution has stated that the main intention behind the murder of L.D. Arora was to prevent the names of Mohd. Dosa, Tahir Shah and others involved in smuggling of arms and explosives would not come to light during the investigations that followed the Bombay blast. It is, therefore, evident that the intention of the accused in the present case was not to cause terror but to prevent information regarding another crime from being divulged. In the light of these facts, we are of the opinion that the TADA Court was justified in dismissing the charges framed under the TADA Act. Therefore, appeals filed by the State for enhancement of sentence require to be dismissed.
### Response:
0
### Explanation:
88.The prosecution in this case has argued that charge under Section 3 is maintainable in the light of the Bombay bomb blasts and the fact that L.D. Arora would have been pivotal in providing information regarding the smuggling of arms and explosives. The case before us concerns the murder of L.D. Arora. The prosecution has not been successful in proving that this particular murder was committed with the intention to cause terror. As mentioned earlier, terror could have been caused as a consequence of the act. The prosecution has stated that the main intention behind the murder of L.D. Arora was to prevent the names of Mohd. Dosa, Tahir Shah and others involved in smuggling of arms and explosives would not come to light during the investigations that followed the Bombay blast. It is, therefore, evident that the intention of the accused in the present case was not to cause terror but to prevent information regarding another crime from being divulged. In the light of these facts, we are of the opinion that the TADA Court was justified in dismissing the charges framed under the TADA Act. Therefore, appeals filed by the State for enhancement of sentence require to be dismissed.
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Praduman Kumar Vs. Virendra Goyal (Dead) By L. Rs
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not given to the appellants when they are ready and willing to pay much more amount than is actually due to the respondent. The fact is that there are valuable constructions over the plots and defendants dispossession would put them to a great loss. It is for this reason that they are prepared to pay the amount that may be demanded from them. I, therefore, find that the appellants are entitled to the benefit of Section l14 of the Transfer of Property Act and are relieved against the forfeiture."4. The second appeal against this decision was summarily dismissed by the High Court of Allahabad.5. In appeal to this Court counsel for the appellant contends:(1) that jurisdiction under Section l14 of the Transfer of Property Act to relieve against forfeiture for non-payment of rent may only be exercised by the Court of First Instance and not by the Court of Appeal;(2) that the Trial Court gave an opportunity to the tenants to pay the amount of rent due together with interest and costs, but the tenants failed to avail themselves of the opportunity. In the circumstances the appellate Court had no jurisdiction to grant another opportunity to the tenants to make the requisite payment and grant relief against forfeiture of the tenancy.(3) that in any event discretion was, in the circumstances, not properly exercised by the District Court.6. In our view, there is no substance in any of the contentions.7. Section l14 of the Transfer of Property Act provides:-"Where a lease of immoveable property has determined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee, if at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment with in fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurried".The covenant of furfeiture of tenancy non-payment of rent is regarded by the Courts as merely a clause for securing payment of rent, and unless the tenants has by his conduct disentitled himself to equitable relief the Courts grant relief against forfeiture of tenancy on the paying the rent due, interest thereon costs of the suit.Jurisdiction to relieve against forfeiture for non-payment of may be exercised by the Court if the tenant in a suit in ejectment at the hearing of the suit pays the arrears of rent together with interest thereon and full costs of the suit. In terms Section 114 makes payment of rent at the hearing of the suit in ejectment a condition of the exercise of the Courts jurisdiction but an appeal being a rehearing of the suit in appropriate cases it is open to the appellate Court at the hearing of the appeal to relieve the tenant in default against forfeiture.Passing of a decree in ejectment against the tenant by the Court of First Instanace does not take away the jurisdiction of the appellate Court to grant equitable relief.This is the view taken by the High Courts in India: See Chilukuri Tripura Sundaramma v. Chilukuri Venketeswarlu alias Ramchandram, AIR 1949 Mad 841 , Janab Vallathi v. Smt. K. Kederval Thayammal, AIR 1958 Mad. 232 , Shrikishanlal v. Ramnath Jankiprasad Ahir, ILR (1944) Nag 877 = (AIR 1944 Nag 229), Budhi Ballab v. Jai Kishan Kanpal, 1963 All LJ 132. The High Court of Bombay in cases arising under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, has also expressed the same opinion in Bhagwan Rambhan Khese v. Ramchandra Kesho Pathak, AIR 1953 Bom 129 .8. We do not think that there is any bar to the exercise of jurisdiction by the appellate court merely because in the Court of First Instance relief against forfeiture was claimed by the tenants and they failed to avail themselves of the opportunity of paying the amount of rent together with interest thereon and costs of the suit.Failure to avail themselves of the opportunity does not operate as a bar to the jurisdiction of the appellate Court. The Appellate Court may, having regard to the conduct of the tenant, decline to exercise its discretion to grant him relief against forfeiture. The question is not one of jurisdiction but of discretion.This Court in Namdeo Lokman Lodhi v. Narmadabai, 1958 SCR 1009 = (AIR 1953 SC 228 ) has observed at p. 1025 (of SCR) = (at p. 234 of AIR):". . . . . . in exercising the discretion (under Section 114 of the Transfer of Property Act) each case must be judged by itself, the delay, the conduct the parties and the difficulties to which the landlord has been put should be weighed against the tenant. * * * * * * It is a maxim of equity that a person who comes in equity must do equity and must come with clean hands if the conduct of the tenant is such that it disentitles him to relief in equity, then the courts hands are not tied to exercise it in his favour".9. The District Court has observed that valuable constructions had been put upon the land leased and the tenants had deposited an amount very much larger than the amount due to the landlord. Having regard to the circumstances the District Court was of the view that discretion should be exercised in favour of the tenants.The High Court summarily dismissed the appeal. The High Court must be taken to have confirmed the view of the District Court. In the appeal with special leave, this Court will not ordinarily interfere with an order made in exercise of the discretion of the Courts below specially when there is no evidence that the tenants were guilty of conduct disentitling them to relief against forfeiture for non-payment of rent.
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0[ds]6. In our view, there is no substance in any of the contentions.We do not think that there is any bar to the exercise of jurisdiction by the appellate court merely because in the Court of First Instance relief against forfeiture was claimed by the tenants and they failed to avail themselves of the opportunity of paying the amount of rent together with interest thereon and costs of the suit.Failure to avail themselves of the opportunity does not operate as a bar to the jurisdiction of the appellate Court. The Appellate Court may, having regard to the conduct of the tenant, decline to exercise its discretion to grant him relief against forfeiture. The question is not one of jurisdiction but of discretion.The District Court has observed that valuable constructions had been put upon the land leased and the tenants had deposited an amount very much larger than the amount due to the landlord. Having regard to the circumstances the District Court was of the view that discretion should be exercised in favour of the tenants.The High Court summarily dismissed the appeal. The High Court must be taken to have confirmed the view of the District Court. In the appeal with special leave, this Court will not ordinarily interfere with an order made in exercise of the discretion of the Courts below specially when there is no evidence that the tenants were guilty of conduct disentitling them to relief against forfeiture for non-payment of rent.
| 0 | 1,496 | 259 |
### 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:
not given to the appellants when they are ready and willing to pay much more amount than is actually due to the respondent. The fact is that there are valuable constructions over the plots and defendants dispossession would put them to a great loss. It is for this reason that they are prepared to pay the amount that may be demanded from them. I, therefore, find that the appellants are entitled to the benefit of Section l14 of the Transfer of Property Act and are relieved against the forfeiture."4. The second appeal against this decision was summarily dismissed by the High Court of Allahabad.5. In appeal to this Court counsel for the appellant contends:(1) that jurisdiction under Section l14 of the Transfer of Property Act to relieve against forfeiture for non-payment of rent may only be exercised by the Court of First Instance and not by the Court of Appeal;(2) that the Trial Court gave an opportunity to the tenants to pay the amount of rent due together with interest and costs, but the tenants failed to avail themselves of the opportunity. In the circumstances the appellate Court had no jurisdiction to grant another opportunity to the tenants to make the requisite payment and grant relief against forfeiture of the tenancy.(3) that in any event discretion was, in the circumstances, not properly exercised by the District Court.6. In our view, there is no substance in any of the contentions.7. Section l14 of the Transfer of Property Act provides:-"Where a lease of immoveable property has determined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee, if at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment with in fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurried".The covenant of furfeiture of tenancy non-payment of rent is regarded by the Courts as merely a clause for securing payment of rent, and unless the tenants has by his conduct disentitled himself to equitable relief the Courts grant relief against forfeiture of tenancy on the paying the rent due, interest thereon costs of the suit.Jurisdiction to relieve against forfeiture for non-payment of may be exercised by the Court if the tenant in a suit in ejectment at the hearing of the suit pays the arrears of rent together with interest thereon and full costs of the suit. In terms Section 114 makes payment of rent at the hearing of the suit in ejectment a condition of the exercise of the Courts jurisdiction but an appeal being a rehearing of the suit in appropriate cases it is open to the appellate Court at the hearing of the appeal to relieve the tenant in default against forfeiture.Passing of a decree in ejectment against the tenant by the Court of First Instanace does not take away the jurisdiction of the appellate Court to grant equitable relief.This is the view taken by the High Courts in India: See Chilukuri Tripura Sundaramma v. Chilukuri Venketeswarlu alias Ramchandram, AIR 1949 Mad 841 , Janab Vallathi v. Smt. K. Kederval Thayammal, AIR 1958 Mad. 232 , Shrikishanlal v. Ramnath Jankiprasad Ahir, ILR (1944) Nag 877 = (AIR 1944 Nag 229), Budhi Ballab v. Jai Kishan Kanpal, 1963 All LJ 132. The High Court of Bombay in cases arising under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, has also expressed the same opinion in Bhagwan Rambhan Khese v. Ramchandra Kesho Pathak, AIR 1953 Bom 129 .8. We do not think that there is any bar to the exercise of jurisdiction by the appellate court merely because in the Court of First Instance relief against forfeiture was claimed by the tenants and they failed to avail themselves of the opportunity of paying the amount of rent together with interest thereon and costs of the suit.Failure to avail themselves of the opportunity does not operate as a bar to the jurisdiction of the appellate Court. The Appellate Court may, having regard to the conduct of the tenant, decline to exercise its discretion to grant him relief against forfeiture. The question is not one of jurisdiction but of discretion.This Court in Namdeo Lokman Lodhi v. Narmadabai, 1958 SCR 1009 = (AIR 1953 SC 228 ) has observed at p. 1025 (of SCR) = (at p. 234 of AIR):". . . . . . in exercising the discretion (under Section 114 of the Transfer of Property Act) each case must be judged by itself, the delay, the conduct the parties and the difficulties to which the landlord has been put should be weighed against the tenant. * * * * * * It is a maxim of equity that a person who comes in equity must do equity and must come with clean hands if the conduct of the tenant is such that it disentitles him to relief in equity, then the courts hands are not tied to exercise it in his favour".9. The District Court has observed that valuable constructions had been put upon the land leased and the tenants had deposited an amount very much larger than the amount due to the landlord. Having regard to the circumstances the District Court was of the view that discretion should be exercised in favour of the tenants.The High Court summarily dismissed the appeal. The High Court must be taken to have confirmed the view of the District Court. In the appeal with special leave, this Court will not ordinarily interfere with an order made in exercise of the discretion of the Courts below specially when there is no evidence that the tenants were guilty of conduct disentitling them to relief against forfeiture for non-payment of rent.
### Response:
0
### Explanation:
6. In our view, there is no substance in any of the contentions.We do not think that there is any bar to the exercise of jurisdiction by the appellate court merely because in the Court of First Instance relief against forfeiture was claimed by the tenants and they failed to avail themselves of the opportunity of paying the amount of rent together with interest thereon and costs of the suit.Failure to avail themselves of the opportunity does not operate as a bar to the jurisdiction of the appellate Court. The Appellate Court may, having regard to the conduct of the tenant, decline to exercise its discretion to grant him relief against forfeiture. The question is not one of jurisdiction but of discretion.The District Court has observed that valuable constructions had been put upon the land leased and the tenants had deposited an amount very much larger than the amount due to the landlord. Having regard to the circumstances the District Court was of the view that discretion should be exercised in favour of the tenants.The High Court summarily dismissed the appeal. The High Court must be taken to have confirmed the view of the District Court. In the appeal with special leave, this Court will not ordinarily interfere with an order made in exercise of the discretion of the Courts below specially when there is no evidence that the tenants were guilty of conduct disentitling them to relief against forfeiture for non-payment of rent.
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PRAMOD LAXMAN GUDADHE Vs. ELECTION COMMISSION OF INDIA
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the High Court. The High Court had quashed the action placing reliance on Section 151A of the Act holding, inter alia, that the said provision is mandatory especially when the vacancies had already been notified by the Speaker of the Assembly as contemplated under Article 190(3)(b) of the Constitution. It is worth noting that the High Court had ignored the pendency of the election petitions against the candidates who had resigned on the foundation that uncertain consequences of the election petitions could not dilute the effect of Section 151A of the Act. The two-Judge Bench, scrutinizing the provisions of the Act and Article 190(3)(b), stated:-45. The Act is a complete code for the conduct of elections by the Election Commission of India appointed under Article 324 of the Constitution which provides for superintendence, direction, control and conduct of elections to Parliament and to the Legislature of every State and also of elections to the offices of President and Vice- President held under the Constitution. The provisions of Article 190(3)(b) of the Constitution have, therefore, to be read along with the provisions of the 1951 Act. Section 84 of the said Act cannot be rendered otiose by holding that all vacancies on account of the aforesaid provision of the Constitution become immediately available for being filled up by way of a bye-election. The same reasoning applies in regard to Section 151- A of the 1951 Act and its impact on the latter part of Section 84 thereof. As has been mentioned hereinbefore, a proceeding under Section 84 has to run its full course, particularly for the purposes of Section 8-A of the said Act. The views expressed by the Division Bench of the High Court on this point cannot, therefore, be sustained. The Court went on to say that the introduction of Section 151A did not alter the position as far as the provisions of Section 84 and, consequently, Sections 98(c) and 101(b) of the Act are concerned, although a casual vacancy may have occurred within the meaning of Section 150 of the Act. The Court made a distinction between the two categories of vacancies, namely, vacancies in which election petitions had been filed and are pending and other vacancies where no such cases were filed and pending. The Court opined that in the first category of cases, the vacancies could not have been treated to be available for the purposes of filling up within the time prescribed under Section 151A of the Act merely because a member of the House of a Legislature of a State had resigned and the same had been accepted by the Speaker. To arrive at the said conclusion, emphasis was laid on Section 84 of the Act. In the second category of cases, the Court pronounced that the vacancies would have to be construed as clear vacancies warranting action under Section 151A of the Act.15. A Division Bench of the High Court of Karnataka in Sri Thomas Mates Gudinho v. Election Commission of India, New Delhi and others 3 , while interpreting Section 151A of the Act, has opined:-13. … Section 151A no doubt seeks to ensure that no Constituency remains un- represented for more than six months. But it is not unconditional. It is subject to two exceptions. i.e. where the remainder of the term of a member in relation to a vacancy is less than one year or where the Election Commission in consultation with the Central Government certifies that it is difficult to hold the bye-election within the said period. Further the non obstante clause is limited in its application to Sections 147, 149, 150 and 151. The non obstante clause does not refer to Section 84 or 98(c) or 101. It therefore follows that Section 151A will have no application if an Election Petition is pending where the prayer is not merely a challenge to the election of the elected candidate, but also seeks a declaration that the petitioner or some one else should be declared as having been elected under Sections 84 read with Section 101 of the Act. Be it noted, the said view has been approved in the case of Telangana Rastra Samithi (supra).16. In the case at hand, no election petition was pending. The elected candidate tendered his resignation on 08.12.2017 and the same was accepted by the Speaker of Lok Sabha on 14.12.2017. The command of Section 151A is to hold the election within a period of six months from the date of occurrence of the vacancy. As the factual score depicts, the vacancy occurred when the resignation was accepted by the Speaker of Lok Sabha on 14.12.2017. It is beyond any dispute that the next General Election to Lok Sabha is in June, 2019. Therefore, the remainder of the term is not less than one year. Whether the election is to be held or not would be governed by clause (b) to the proviso to Section 151A and we are not concerned with the same. The ground raised that the code of conduct would come into play before the elections are held in June, 2019 is absolutely sans substance as the Act does not contemplate so. It is the period alone that should be the governing factor subject to the pendency of election petition because that is not controlled by the non obstante clause. Such an interpretation is in accord with the sanctified principle of democracy and the intention of the Parliament is not to keep a constituency remaining unrepresented. The concern expressed with regard to load on the exchequer cannot be treated as a ground. It is so because the representative democracy has to sustain itself by the elected representatives. We may hasten to add that the matter would be different when an election dispute is pending against the candidate that comes within the ambit and sweep of Section 84 or Section 98(c) or Section 101(b) of the Act. That not being the case, the view expressed by the High Court is absolutely impregnable.
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0[ds]12. At the very outset, we must make a distinction between Sections 147, 149, 150 and 151 on the one hand and Section 151A of the Act on the other. While interpreting these provisions, it has to be kept in mind that though the right to elect a person is fundamental to democracy, yet it is only a statutory right. It is also well settled in law that the legislations governing the said right have to be strictly construed.In the case at hand, no election petition was pending. The elected candidate tendered his resignation on 08.12.2017 and the same was accepted by the Speaker of Lok Sabha on 14.12.2017. The command of Section 151A is to hold the election within a period of six months from the date of occurrence of the vacancy. As the factual scoredepicts, the vacancy occurred when the resignation was accepted by the Speaker of Lok Sabha on 14.12.2017. It is beyond any dispute that the next General Election to Lok Sabha is in June, 2019. Therefore, the remainder of the term is not less than one year. Whether the election is to be held or not would be governed by clause (b) to the proviso to Section 151A and we are not concerned with the same. The ground raised that the code of conduct would come into play before the elections are held in June, 2019 is absolutely sans substance as the Act does not contemplate so. It is the period alone that should be the governing factor subject to the pendency of election petition because that is not controlled by the non obstante clause. Such an interpretation is in accord with the sanctified principle of democracy and the intention of the Parliament is not to keep a constituency remaining unrepresented. The concern expressed with regard to load on the exchequer cannot be treated as a ground. It is so because the representative democracy has to sustain itself by the elected representatives. We may hasten to add that the matter would be different when an election dispute is pending against the candidate that comes within the ambit and sweep of Section 84 or Section 98(c) or Section 101(b) of the Act. That not being the case, the view expressed by the High Court is absolutely impregnable.
| 0 | 3,099 | 422 |
### 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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the High Court. The High Court had quashed the action placing reliance on Section 151A of the Act holding, inter alia, that the said provision is mandatory especially when the vacancies had already been notified by the Speaker of the Assembly as contemplated under Article 190(3)(b) of the Constitution. It is worth noting that the High Court had ignored the pendency of the election petitions against the candidates who had resigned on the foundation that uncertain consequences of the election petitions could not dilute the effect of Section 151A of the Act. The two-Judge Bench, scrutinizing the provisions of the Act and Article 190(3)(b), stated:-45. The Act is a complete code for the conduct of elections by the Election Commission of India appointed under Article 324 of the Constitution which provides for superintendence, direction, control and conduct of elections to Parliament and to the Legislature of every State and also of elections to the offices of President and Vice- President held under the Constitution. The provisions of Article 190(3)(b) of the Constitution have, therefore, to be read along with the provisions of the 1951 Act. Section 84 of the said Act cannot be rendered otiose by holding that all vacancies on account of the aforesaid provision of the Constitution become immediately available for being filled up by way of a bye-election. The same reasoning applies in regard to Section 151- A of the 1951 Act and its impact on the latter part of Section 84 thereof. As has been mentioned hereinbefore, a proceeding under Section 84 has to run its full course, particularly for the purposes of Section 8-A of the said Act. The views expressed by the Division Bench of the High Court on this point cannot, therefore, be sustained. The Court went on to say that the introduction of Section 151A did not alter the position as far as the provisions of Section 84 and, consequently, Sections 98(c) and 101(b) of the Act are concerned, although a casual vacancy may have occurred within the meaning of Section 150 of the Act. The Court made a distinction between the two categories of vacancies, namely, vacancies in which election petitions had been filed and are pending and other vacancies where no such cases were filed and pending. The Court opined that in the first category of cases, the vacancies could not have been treated to be available for the purposes of filling up within the time prescribed under Section 151A of the Act merely because a member of the House of a Legislature of a State had resigned and the same had been accepted by the Speaker. To arrive at the said conclusion, emphasis was laid on Section 84 of the Act. In the second category of cases, the Court pronounced that the vacancies would have to be construed as clear vacancies warranting action under Section 151A of the Act.15. A Division Bench of the High Court of Karnataka in Sri Thomas Mates Gudinho v. Election Commission of India, New Delhi and others 3 , while interpreting Section 151A of the Act, has opined:-13. … Section 151A no doubt seeks to ensure that no Constituency remains un- represented for more than six months. But it is not unconditional. It is subject to two exceptions. i.e. where the remainder of the term of a member in relation to a vacancy is less than one year or where the Election Commission in consultation with the Central Government certifies that it is difficult to hold the bye-election within the said period. Further the non obstante clause is limited in its application to Sections 147, 149, 150 and 151. The non obstante clause does not refer to Section 84 or 98(c) or 101. It therefore follows that Section 151A will have no application if an Election Petition is pending where the prayer is not merely a challenge to the election of the elected candidate, but also seeks a declaration that the petitioner or some one else should be declared as having been elected under Sections 84 read with Section 101 of the Act. Be it noted, the said view has been approved in the case of Telangana Rastra Samithi (supra).16. In the case at hand, no election petition was pending. The elected candidate tendered his resignation on 08.12.2017 and the same was accepted by the Speaker of Lok Sabha on 14.12.2017. The command of Section 151A is to hold the election within a period of six months from the date of occurrence of the vacancy. As the factual score depicts, the vacancy occurred when the resignation was accepted by the Speaker of Lok Sabha on 14.12.2017. It is beyond any dispute that the next General Election to Lok Sabha is in June, 2019. Therefore, the remainder of the term is not less than one year. Whether the election is to be held or not would be governed by clause (b) to the proviso to Section 151A and we are not concerned with the same. The ground raised that the code of conduct would come into play before the elections are held in June, 2019 is absolutely sans substance as the Act does not contemplate so. It is the period alone that should be the governing factor subject to the pendency of election petition because that is not controlled by the non obstante clause. Such an interpretation is in accord with the sanctified principle of democracy and the intention of the Parliament is not to keep a constituency remaining unrepresented. The concern expressed with regard to load on the exchequer cannot be treated as a ground. It is so because the representative democracy has to sustain itself by the elected representatives. We may hasten to add that the matter would be different when an election dispute is pending against the candidate that comes within the ambit and sweep of Section 84 or Section 98(c) or Section 101(b) of the Act. That not being the case, the view expressed by the High Court is absolutely impregnable.
### Response:
0
### Explanation:
12. At the very outset, we must make a distinction between Sections 147, 149, 150 and 151 on the one hand and Section 151A of the Act on the other. While interpreting these provisions, it has to be kept in mind that though the right to elect a person is fundamental to democracy, yet it is only a statutory right. It is also well settled in law that the legislations governing the said right have to be strictly construed.In the case at hand, no election petition was pending. The elected candidate tendered his resignation on 08.12.2017 and the same was accepted by the Speaker of Lok Sabha on 14.12.2017. The command of Section 151A is to hold the election within a period of six months from the date of occurrence of the vacancy. As the factual scoredepicts, the vacancy occurred when the resignation was accepted by the Speaker of Lok Sabha on 14.12.2017. It is beyond any dispute that the next General Election to Lok Sabha is in June, 2019. Therefore, the remainder of the term is not less than one year. Whether the election is to be held or not would be governed by clause (b) to the proviso to Section 151A and we are not concerned with the same. The ground raised that the code of conduct would come into play before the elections are held in June, 2019 is absolutely sans substance as the Act does not contemplate so. It is the period alone that should be the governing factor subject to the pendency of election petition because that is not controlled by the non obstante clause. Such an interpretation is in accord with the sanctified principle of democracy and the intention of the Parliament is not to keep a constituency remaining unrepresented. The concern expressed with regard to load on the exchequer cannot be treated as a ground. It is so because the representative democracy has to sustain itself by the elected representatives. We may hasten to add that the matter would be different when an election dispute is pending against the candidate that comes within the ambit and sweep of Section 84 or Section 98(c) or Section 101(b) of the Act. That not being the case, the view expressed by the High Court is absolutely impregnable.
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Nandkishor Savalaram Malu (Dead) Through Lrs. Vs. Hanumanmal G.Biyani(D) By Lrs
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the suit house to the plaintiffs on 12.05.1980.17. According to learned counsel, it was, therefore, a clear case where tenant having suffered a decree for eviction, all persons claiming through such tenant or/and those acting for and on behalf of the tenant-Firm, had to be dispossessed on the strength of the decree suffered by the tenant-firm.18. On these submissions, learned Counsel for the appellants prayed for reversal of the impugned order and restoration of the order of the first appellate Court. 19. In reply, learned counsel for the respondents supported the impugned order and contended for its upholding.20. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to accept the submissions of the learned counsel for the appellants as, in our opinion, it has a force. 21. Indeed, we are constrained to observe that there was absolutely no legal basis for the High Court to have reversed the well-reasoned order of the first appellate Court which had rightly reversed the order of the Trial Court by passing decree for arrears of rent, eviction and mesne profits against all the defendants jointly and severally. The High Court, unfortunately, failed to apply the settled legal principles applicable to the case at hand as are enumerated herein below in the light of following factual findings of fact recorded by the two Courts below.22. Firstly, the Firm was held to be the tenant whereas defendant no.1 was held to be Firms employee. Secondly, the Firm failed to prove that they surrendered their possession to the appellants and cleared all arrears of rent and lastly, defendant no.1 was held to be in possession of the suit house as "trespasser" and not as " appellants tenant".23. With these concurrent findings of fact, we are of the considered opinion that neither the Firm nor their partners and nor defendant no.1 had any legal right to remain in possession of the suit house. The reason being that so far as the Firm and its partners were concerned (defendant Nos. 2 to 9), they being the tenant rightly suffered the decree for payment of arrears of rent and eviction under the Rent Act and so far as defendant no.1 was concerned, he was neither an owner of the suit house nor a tenant inducted by the appellants and nor a licensee but was held to be an employee of the Firm and a rank trespasser in the suit house. 24. The legal effect of such eviction decree under the Rent Act was that the possession of the tenant-firm and persons claiming through such tenant became unauthorized. Since the tenant was a Firm, persons connected with the internal affairs of the Firm such as its partners and the employees working in the Firm were also bound by the eviction decree for the simple reason that all such persons were claiming through the tenant-Firm. 25. An employee of a tenant is never considered to be in actual possession of tenanted premises much less in possession in his legal right. Indeed, he is allowed to use the tenanted premises only with the permission of his employer by virtue of his contract of employment with his employer. An employee, therefore, cannot claim any legal right of his own to occupy or to remain in possession of the tenanted premises while in employment of his employer or even thereafter qua landlord for want of any privity of contract between him and the landlord in respect of the tenanted premises. 26. There was, therefore, no need for the appellant to file a separate suit to claim possession of the suit house against defendant no.1 under the general law as he was well within his legal right to execute the decree for eviction from the demised premises in this very litigation not only against the original tenant but also against all the persons who were claiming through such tenant. As mentioned above, defendant no.1 was such person who was held to be claiming through the tenant being its employee and was, therefore, bound by the decree once passed against his employer-tenant. 27. A tenancy is a creation of contract between the two persons who are capable to enter into contract called lessor/landlord and the lessee/tenant. The two persons can be either living person or juristic persons such as Partnership Firm or a Company. 28. Once the tenancy is created either orally or in writing with respect to a land or building then it is always subject to the relevant provisions of the Transfer of Property Act, 1882 (hereinafter referred to as "the TP Act") and the State Rent Acts. Sections 105 to 111 of the TP Act provide certain safeguards, create some statutory rights, obligations, duties whereas the State Rent Acts, inter alia, specify the grounds to enable the lessor to evict the lessee/tenant from the demised premises. 29. If the lessee/tenant is a living person, then in such event, the tenant would also include his legal representatives in the event of his death together with his dependents living with the tenant in the tenanted premises. Likewise, if the lessee/tenant is a juristic person, i.e., partnership Firm then such tenant would represent the interest of all the partners of the Firm and the employees working in the Firm. Such persons since claim through the Firm, they have no right of their own in the tenancy and in the demised property qua landlord. 30. As a matter of fact, in our view, it was not necessary for the appellants to have impleaded defendant no.1 in the present rent proceedings. The reason being that in rent proceedings the lessee/tenant is the only necessary or/and proper party and none else. A person, who claims through lessee/tenant, is not a necessary party.31. The aforementioned factors were completely overlooked by the High Court. It is for these reasons, the impugned order is not legally sustainable and, therefore, deserves to be set aside. 32. In the light of foregoing discussion, the
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1[ds]21. Indeed, we are constrained to observe that there was absolutely no legal basis for the High Court to have reversed the well-reasoned order of the first appellate Court which had rightly reversed the order of the Trial Court by passing decree for arrears of rent, eviction and mesne profits against all the defendants jointly and severally. The High Court, unfortunately, failed to apply the settled legal principles applicable to the case at hand as are enumerated herein below in the light of following factual findings of fact recorded by the two Courts below.22. Firstly, the Firm was held to be the tenant whereas defendant no.1 was held to be Firms employee. Secondly, the Firm failed to prove that they surrendered their possession to the appellants and cleared all arrears of rent and lastly, defendant no.1 was held to be in possession of the suit house as "trespasser" and not as " appellants tenant".23. With these concurrent findings of fact, we are of the considered opinion that neither the Firm nor their partners and nor defendant no.1 had any legal right to remain in possession of the suit house. The reason being that so far as the Firm and its partners were concerned (defendant Nos. 2 to 9), they being the tenant rightly suffered the decree for payment of arrears of rent and eviction under the Rent Act and so far as defendant no.1 was concerned, he was neither an owner of the suit house nor a tenant inducted by the appellants and nor a licensee but was held to be an employee of the Firm and a rank trespasser in the suit house.There was, therefore, no need for the appellant to file a separate suit to claim possession of the suit house against defendant no.1 under the general law as he was well within his legal right to execute the decree for eviction from the demised premises in this very litigation not only against the original tenant but also against all the persons who were claiming through such tenant. As mentioned above, defendant no.1 was such person who was held to be claiming through the tenant being its employee and was, therefore, bound by the decree once passed against his employer-tenant.As a matter of fact, in our view, it was not necessary for the appellants to have impleaded defendant no.1 in the present rent proceedings. The reason being that in rent proceedings the lessee/tenant is the only necessary or/and proper party and none else. A person, who claims through lessee/tenant, is not a necessary party.31. The aforementioned factors were completely overlooked by the High Court. It is for these reasons, the impugned order is not legally sustainable and, therefore, deserves to be set aside.
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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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the suit house to the plaintiffs on 12.05.1980.17. According to learned counsel, it was, therefore, a clear case where tenant having suffered a decree for eviction, all persons claiming through such tenant or/and those acting for and on behalf of the tenant-Firm, had to be dispossessed on the strength of the decree suffered by the tenant-firm.18. On these submissions, learned Counsel for the appellants prayed for reversal of the impugned order and restoration of the order of the first appellate Court. 19. In reply, learned counsel for the respondents supported the impugned order and contended for its upholding.20. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to accept the submissions of the learned counsel for the appellants as, in our opinion, it has a force. 21. Indeed, we are constrained to observe that there was absolutely no legal basis for the High Court to have reversed the well-reasoned order of the first appellate Court which had rightly reversed the order of the Trial Court by passing decree for arrears of rent, eviction and mesne profits against all the defendants jointly and severally. The High Court, unfortunately, failed to apply the settled legal principles applicable to the case at hand as are enumerated herein below in the light of following factual findings of fact recorded by the two Courts below.22. Firstly, the Firm was held to be the tenant whereas defendant no.1 was held to be Firms employee. Secondly, the Firm failed to prove that they surrendered their possession to the appellants and cleared all arrears of rent and lastly, defendant no.1 was held to be in possession of the suit house as "trespasser" and not as " appellants tenant".23. With these concurrent findings of fact, we are of the considered opinion that neither the Firm nor their partners and nor defendant no.1 had any legal right to remain in possession of the suit house. The reason being that so far as the Firm and its partners were concerned (defendant Nos. 2 to 9), they being the tenant rightly suffered the decree for payment of arrears of rent and eviction under the Rent Act and so far as defendant no.1 was concerned, he was neither an owner of the suit house nor a tenant inducted by the appellants and nor a licensee but was held to be an employee of the Firm and a rank trespasser in the suit house. 24. The legal effect of such eviction decree under the Rent Act was that the possession of the tenant-firm and persons claiming through such tenant became unauthorized. Since the tenant was a Firm, persons connected with the internal affairs of the Firm such as its partners and the employees working in the Firm were also bound by the eviction decree for the simple reason that all such persons were claiming through the tenant-Firm. 25. An employee of a tenant is never considered to be in actual possession of tenanted premises much less in possession in his legal right. Indeed, he is allowed to use the tenanted premises only with the permission of his employer by virtue of his contract of employment with his employer. An employee, therefore, cannot claim any legal right of his own to occupy or to remain in possession of the tenanted premises while in employment of his employer or even thereafter qua landlord for want of any privity of contract between him and the landlord in respect of the tenanted premises. 26. There was, therefore, no need for the appellant to file a separate suit to claim possession of the suit house against defendant no.1 under the general law as he was well within his legal right to execute the decree for eviction from the demised premises in this very litigation not only against the original tenant but also against all the persons who were claiming through such tenant. As mentioned above, defendant no.1 was such person who was held to be claiming through the tenant being its employee and was, therefore, bound by the decree once passed against his employer-tenant. 27. A tenancy is a creation of contract between the two persons who are capable to enter into contract called lessor/landlord and the lessee/tenant. The two persons can be either living person or juristic persons such as Partnership Firm or a Company. 28. Once the tenancy is created either orally or in writing with respect to a land or building then it is always subject to the relevant provisions of the Transfer of Property Act, 1882 (hereinafter referred to as "the TP Act") and the State Rent Acts. Sections 105 to 111 of the TP Act provide certain safeguards, create some statutory rights, obligations, duties whereas the State Rent Acts, inter alia, specify the grounds to enable the lessor to evict the lessee/tenant from the demised premises. 29. If the lessee/tenant is a living person, then in such event, the tenant would also include his legal representatives in the event of his death together with his dependents living with the tenant in the tenanted premises. Likewise, if the lessee/tenant is a juristic person, i.e., partnership Firm then such tenant would represent the interest of all the partners of the Firm and the employees working in the Firm. Such persons since claim through the Firm, they have no right of their own in the tenancy and in the demised property qua landlord. 30. As a matter of fact, in our view, it was not necessary for the appellants to have impleaded defendant no.1 in the present rent proceedings. The reason being that in rent proceedings the lessee/tenant is the only necessary or/and proper party and none else. A person, who claims through lessee/tenant, is not a necessary party.31. The aforementioned factors were completely overlooked by the High Court. It is for these reasons, the impugned order is not legally sustainable and, therefore, deserves to be set aside. 32. In the light of foregoing discussion, the
### Response:
1
### Explanation:
21. Indeed, we are constrained to observe that there was absolutely no legal basis for the High Court to have reversed the well-reasoned order of the first appellate Court which had rightly reversed the order of the Trial Court by passing decree for arrears of rent, eviction and mesne profits against all the defendants jointly and severally. The High Court, unfortunately, failed to apply the settled legal principles applicable to the case at hand as are enumerated herein below in the light of following factual findings of fact recorded by the two Courts below.22. Firstly, the Firm was held to be the tenant whereas defendant no.1 was held to be Firms employee. Secondly, the Firm failed to prove that they surrendered their possession to the appellants and cleared all arrears of rent and lastly, defendant no.1 was held to be in possession of the suit house as "trespasser" and not as " appellants tenant".23. With these concurrent findings of fact, we are of the considered opinion that neither the Firm nor their partners and nor defendant no.1 had any legal right to remain in possession of the suit house. The reason being that so far as the Firm and its partners were concerned (defendant Nos. 2 to 9), they being the tenant rightly suffered the decree for payment of arrears of rent and eviction under the Rent Act and so far as defendant no.1 was concerned, he was neither an owner of the suit house nor a tenant inducted by the appellants and nor a licensee but was held to be an employee of the Firm and a rank trespasser in the suit house.There was, therefore, no need for the appellant to file a separate suit to claim possession of the suit house against defendant no.1 under the general law as he was well within his legal right to execute the decree for eviction from the demised premises in this very litigation not only against the original tenant but also against all the persons who were claiming through such tenant. As mentioned above, defendant no.1 was such person who was held to be claiming through the tenant being its employee and was, therefore, bound by the decree once passed against his employer-tenant.As a matter of fact, in our view, it was not necessary for the appellants to have impleaded defendant no.1 in the present rent proceedings. The reason being that in rent proceedings the lessee/tenant is the only necessary or/and proper party and none else. A person, who claims through lessee/tenant, is not a necessary party.31. The aforementioned factors were completely overlooked by the High Court. It is for these reasons, the impugned order is not legally sustainable and, therefore, deserves to be set aside.
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Senior Divisional Commercial Manager &Or Vs. S.C.R Caterers,Dry Fruits,F.J.S.W Associ
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raw materials from one place to another. After the enactment of the Railways Act, 1989, the Rail Land Development Authority has been established under Chapter IIA of the Act to manage the railway property by framing policy or rules for allotment of the same in favour of the licensees, including fixing license fee or occupation charges in respect of the vast extent of vacant property from which huge revenue can be collected, which is a laudable object to cater to the need of the public at large. The periodical revision of license fee in respect of such big operators has not been done by the railways. Also, the Policy of not renewing the licenses of those persons who are members of the respondents are completely dependent on self-earning from these small units and making them participate in a public competition is absolutely unfair, unreasonable and arbitrary. The chances of such persons being deprived of their right to livelihood is also an important factor which has to be taken into consideration by this Court to interpret the policy framed by the appellants. The callous attitude as far as the inaction on the part of the State in tackling the problem of rising unemployment is appalling. The situation is made worse by the handing over of public functions to private entrepreneurs, which then exploit the policies of the government against the poor and downtrodden people of the country. If the appellants under the guise of the policy are permitted to deny renewal of licenses in favour of the licensees, it would amount to deprivation of their right to freedom of occupation guaranteed under Article 19(1)(g) of the Constitution as well as the right to livelihood, which action of the appellants would be diametrically opposed to their constitutional duty towards social justice as well as uplifting the weaker sections of the society and the unemployed youth of the country. 25. In the case of Consumer Education & Research Center v. Union of India (1995) 3 SCC 42 )a three Judge Bench of this Court observed as under: “Social justice, equality and dignity of person are cornerstones of social democracy. The concept social justice which the Constitution of India engrafted, consists of diverse principles essential for the orderly growth and development of personality of every citizen.……Social justice is a dynamic device to mitigate the sufferings of the poor, weak, Dalits, Tribals and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of person. Social justice is not a simple or single idea of a society but is an essential part of complex social change to relieve the poor etc. from handicaps, penury to ward off distress, and to make their life livable, for greater good of the society at large. In other words, the aim of social justice is to attain substantial degree of social, economic and political equality, which is the legitimate expectation. Social security, just and humane conditions of work and leisure to workman are part of his meaningful right to life and to achieve self- expression of his personality and to enjoy the life with dignity, the State should provide facilities and opportunities to enable them to reach at least minimum standard of health, economic security and civilised living while sharing according to the capacity, social and cultural heritage.” Further, in the case of Sadhuram Bansal v. Pulin Sarkar (1984) 3 SCC 410 )this Court held as under: “There is no ritualistic formula or any magical charm in the concept of social justice. All that it means is that as between two parties if a deal is made with one party without serious detriment to the other, then the Court would lean in favour of the weaker section of the society, Social justice is the recognition of greater good to larger number without deprivation of accrued legal rights of anybody. If such a thing can be done then indeed social justice must prevail over any technical rule. It is in response to the felt necessities of time and situation in order to do greater good to a larger number even though it might detract from some technical rule in favour of a party.” 26. Keeping in view the evolving concept of social justice, we allow the members of respondents who are the licensees to continue their petty business, especially in the absence of employment potentiality in the country on account of non-governance and non- implementation of the constitutional philosophy of an egalitarian society, which provides the opportunity to all individuals to lead a life of dignity. The right to life with dignity has been interpreted to be a part of right to life by this Court in the case of Francis Coralie Mullin v. Administrator, Union Territory of Delhi & Ors. (1981) 1 SCC 608 ), as under: “We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing one-self in diverse forms, freely moving about and mixing and commingling with fellow human beings. Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self.” 27. Therefore, we have to hold that the provisions of the Catering Policy, 2010 are applicable to the concerned respondents. The action of the railways in not granting renewals of the licenses to the members of the respondents is arbitrary, unreasonable, unfair and discriminatory, and the same cannot be allowed to sustain in law.28. For the reasons stated supra, this Court cannot interfere with the impugned judgment and order of the High Court.
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0[ds]24. One more important aspect to be taken note of by this Court is the non governance of railway property in the past 67 years since independence. Though, it is a recognized principle of law that the property of the railways is public property, yet in reality, it is the private players and industries that are allowed to carry on their business for transport of raw materials from one place to another. After the enactment of the Railways Act, 1989, the Rail Land Development Authority has been established under Chapter IIA of the Act to manage the railway property by framing policy or rules for allotment of the same in favour of the licensees, including fixing license fee or occupation charges in respect of the vast extent of vacant property from which huge revenue can be collected, which is a laudable object to cater to the need of the public at large. The periodical revision of license fee in respect of such big operators has not been done by the railways. Also, the Policy of not renewing the licenses of those persons who are members of the respondents are completely dependent on self-earning from these small units and making them participate in a public competition is absolutely unfair, unreasonable and arbitrary. The chances of such persons being deprived of their right to livelihood is also an important factor which has to be taken into consideration by this Court to interpret the policy framed by the appellants. The callous attitude as far as the inaction on the part of the State in tackling the problem of rising unemployment is appalling. The situation is made worse by the handing over of public functions to private entrepreneurs, which then exploit the policies of the government against the poor and downtrodden people of the country. If the appellants under the guise of the policy are permitted to deny renewal of licenses in favour of the licensees, it would amount to deprivation of their right to freedom of occupation guaranteed under Article 19(1)(g) of the Constitution as well as the right to livelihood, which action of the appellants would be diametrically opposed to their constitutional duty towards social justice as well as uplifting the weaker sections of the society and the unemployed youth of the country.Keeping in view the evolving concept of social justice, we allow the members of respondents who are the licensees to continue their petty business, especially in the absence of employment potentiality in the country on account of non-governance and non- implementation of the constitutional philosophy of an egalitarian society, which provides the opportunity to all individuals to lead a life of dignity.Therefore, we have to hold that the provisions of the Catering Policy, 2010 are applicable to the concerned respondents. The action of the railways in not granting renewals of the licenses to the members of the respondents is arbitrary, unreasonable, unfair and discriminatory, and the same cannot be allowed to sustain in law.28. For the reasons stated supra, this Court cannot interfere with the impugned judgment and order of the High Court.
| 0 | 7,230 | 558 |
### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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raw materials from one place to another. After the enactment of the Railways Act, 1989, the Rail Land Development Authority has been established under Chapter IIA of the Act to manage the railway property by framing policy or rules for allotment of the same in favour of the licensees, including fixing license fee or occupation charges in respect of the vast extent of vacant property from which huge revenue can be collected, which is a laudable object to cater to the need of the public at large. The periodical revision of license fee in respect of such big operators has not been done by the railways. Also, the Policy of not renewing the licenses of those persons who are members of the respondents are completely dependent on self-earning from these small units and making them participate in a public competition is absolutely unfair, unreasonable and arbitrary. The chances of such persons being deprived of their right to livelihood is also an important factor which has to be taken into consideration by this Court to interpret the policy framed by the appellants. The callous attitude as far as the inaction on the part of the State in tackling the problem of rising unemployment is appalling. The situation is made worse by the handing over of public functions to private entrepreneurs, which then exploit the policies of the government against the poor and downtrodden people of the country. If the appellants under the guise of the policy are permitted to deny renewal of licenses in favour of the licensees, it would amount to deprivation of their right to freedom of occupation guaranteed under Article 19(1)(g) of the Constitution as well as the right to livelihood, which action of the appellants would be diametrically opposed to their constitutional duty towards social justice as well as uplifting the weaker sections of the society and the unemployed youth of the country. 25. In the case of Consumer Education & Research Center v. Union of India (1995) 3 SCC 42 )a three Judge Bench of this Court observed as under: “Social justice, equality and dignity of person are cornerstones of social democracy. The concept social justice which the Constitution of India engrafted, consists of diverse principles essential for the orderly growth and development of personality of every citizen.……Social justice is a dynamic device to mitigate the sufferings of the poor, weak, Dalits, Tribals and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of person. Social justice is not a simple or single idea of a society but is an essential part of complex social change to relieve the poor etc. from handicaps, penury to ward off distress, and to make their life livable, for greater good of the society at large. In other words, the aim of social justice is to attain substantial degree of social, economic and political equality, which is the legitimate expectation. Social security, just and humane conditions of work and leisure to workman are part of his meaningful right to life and to achieve self- expression of his personality and to enjoy the life with dignity, the State should provide facilities and opportunities to enable them to reach at least minimum standard of health, economic security and civilised living while sharing according to the capacity, social and cultural heritage.” Further, in the case of Sadhuram Bansal v. Pulin Sarkar (1984) 3 SCC 410 )this Court held as under: “There is no ritualistic formula or any magical charm in the concept of social justice. All that it means is that as between two parties if a deal is made with one party without serious detriment to the other, then the Court would lean in favour of the weaker section of the society, Social justice is the recognition of greater good to larger number without deprivation of accrued legal rights of anybody. If such a thing can be done then indeed social justice must prevail over any technical rule. It is in response to the felt necessities of time and situation in order to do greater good to a larger number even though it might detract from some technical rule in favour of a party.” 26. Keeping in view the evolving concept of social justice, we allow the members of respondents who are the licensees to continue their petty business, especially in the absence of employment potentiality in the country on account of non-governance and non- implementation of the constitutional philosophy of an egalitarian society, which provides the opportunity to all individuals to lead a life of dignity. The right to life with dignity has been interpreted to be a part of right to life by this Court in the case of Francis Coralie Mullin v. Administrator, Union Territory of Delhi & Ors. (1981) 1 SCC 608 ), as under: “We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing one-self in diverse forms, freely moving about and mixing and commingling with fellow human beings. Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self.” 27. Therefore, we have to hold that the provisions of the Catering Policy, 2010 are applicable to the concerned respondents. The action of the railways in not granting renewals of the licenses to the members of the respondents is arbitrary, unreasonable, unfair and discriminatory, and the same cannot be allowed to sustain in law.28. For the reasons stated supra, this Court cannot interfere with the impugned judgment and order of the High Court.
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0
### Explanation:
24. One more important aspect to be taken note of by this Court is the non governance of railway property in the past 67 years since independence. Though, it is a recognized principle of law that the property of the railways is public property, yet in reality, it is the private players and industries that are allowed to carry on their business for transport of raw materials from one place to another. After the enactment of the Railways Act, 1989, the Rail Land Development Authority has been established under Chapter IIA of the Act to manage the railway property by framing policy or rules for allotment of the same in favour of the licensees, including fixing license fee or occupation charges in respect of the vast extent of vacant property from which huge revenue can be collected, which is a laudable object to cater to the need of the public at large. The periodical revision of license fee in respect of such big operators has not been done by the railways. Also, the Policy of not renewing the licenses of those persons who are members of the respondents are completely dependent on self-earning from these small units and making them participate in a public competition is absolutely unfair, unreasonable and arbitrary. The chances of such persons being deprived of their right to livelihood is also an important factor which has to be taken into consideration by this Court to interpret the policy framed by the appellants. The callous attitude as far as the inaction on the part of the State in tackling the problem of rising unemployment is appalling. The situation is made worse by the handing over of public functions to private entrepreneurs, which then exploit the policies of the government against the poor and downtrodden people of the country. If the appellants under the guise of the policy are permitted to deny renewal of licenses in favour of the licensees, it would amount to deprivation of their right to freedom of occupation guaranteed under Article 19(1)(g) of the Constitution as well as the right to livelihood, which action of the appellants would be diametrically opposed to their constitutional duty towards social justice as well as uplifting the weaker sections of the society and the unemployed youth of the country.Keeping in view the evolving concept of social justice, we allow the members of respondents who are the licensees to continue their petty business, especially in the absence of employment potentiality in the country on account of non-governance and non- implementation of the constitutional philosophy of an egalitarian society, which provides the opportunity to all individuals to lead a life of dignity.Therefore, we have to hold that the provisions of the Catering Policy, 2010 are applicable to the concerned respondents. The action of the railways in not granting renewals of the licenses to the members of the respondents is arbitrary, unreasonable, unfair and discriminatory, and the same cannot be allowed to sustain in law.28. For the reasons stated supra, this Court cannot interfere with the impugned judgment and order of the High Court.
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State Of Rajasthan Vs. Leela Jain
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construction, for the words have meaning and effect can be given to them without the same conflicting with tiny other operative provision of the Act.15. If the argument that the words should be rejected is not accepted and some meaning has to be attributed to these words, the alternative submission of the learned Counsel for the respondent was that we should read the words orders passed as confined to orders which were appealable orders for which an appeal was provided under a Municipal law. In this connection it was urged that the intention of the framers of the Act was merely to enact a legislation providing for a uniform forum in which appeals for which diverse provisions were made in the Municipal laws of the several Municipalities in the State were to be entertained and disposed of and it would be inconsistent with such an intention to hold that they made a provision for Government revising orders which according to the relevant Municipal Law were final and not subject to any appeal. This argument though plausible does not appear to us to be sound or maintainable on any proper construction of the words employed. If the learned Counsel is right, the clause would read "The Government may.......... call for any record of any case........... of any appealable order passed by a Commissioner or by a Municipal authority and may pass such orders..........." This would show how impossible it is to read the word order as confined to appealable orders which is what the learned Counsel suggests as the proper construction of the proviso, for it would at once be seen that there are no appealable orders of the Commissioner, since S.4 (1) has in terms prohibited all appeals. As the words orders of are not repeated before the words a Municipal authority, you cannot read word order as meaning orders declared final by this Act when applied to the orders of a Commissioner and as meaning "orders subject to appeal under a Municipal Law" in relation to the orders of a Municipal Authority. Besides, it would be some what anomalous that S. 3 should provide the forum for appeals which lay under the Municipal Act and in regard to the same matter, i.e., those in regard to which a Municipal appeal would lie, make a parallel provision for a revision by the State Government without clearer words. We do not consider it necessary to examine this matter further or to examine the other anomalies which this construction might involve, because we are in this case concerned with a non-appealable order of a Municipal authority. So far as they are concerned, such orders would be in exactly the same situation as regards their finality as the orders of a Commissioner, which by reason of the positive provisions of S. 3 (3) and S. 4 (1) are expressly declared final by the Act. It appears to us that the more reasonable construction is to construe the words orders of a Municipal authority as including final orders not subject to a Municipal appeal which would fall into the same category as appellate orders of a Commissioner which are declared final by the Act.16. It is, no doubt, true that so to construe these words could empower a State Government to interfere in Municipal affairs and this on an extensive scale and enable them to pass orders in revision, on matters which under the relevant Municipal law were final and not subject to any appeal. That is an aspect which appealed greatly to the learned Judges of the High Court and as we have pointed out earlier, forms the main reasoning on which they have arrived at the construction of the proviso. Though we are not unmindful of the consequences and implications of this construction, we consider that it would not be proper to take these factors into consideration where the words of the statute are clear and what we have stated earlier should suffice to show that, in our opinion the opposite construction is not reasonably open without doing violence to the language of the enactment either by omitting the words "or other Municipal authorities", altogether or by rewriting the section so as to achieve the desired result. We do not conceive this to be the function of a Court of construction but that it must be left to other organs of Government. We, therefore, consider that the learned Judges of the High Court were in error in holding that the State Government had no power to entertain the revision against the order of the President of the Municipal Council and to quash it on that ground.17. As already indicatd in the Writ Petition under Art. 226 filed by the respondent to the High Court she based her attack on the validity of the order of the State Government not merely on the ground that it was beyond their revisional jurisdiction, but on various other grounds. The learned Judges of the High Court having reached a conclusion in her favour on this ground, observed in the course of their judgment:"The order of the Government is without jurisdiction and must be quashed on this ground alone. It is not necessary to go into the other grounds raised in this petition."The learned Counsel for the respondent drew our attention to this passage and submitted that we should allow the appeal on our construction of the proviso to S. 4 (1), we should remand the case to the High Court for considering the other objections that were raised. Though the learned Counsel for the appellant submitted that we might ourselves deal with the other points, we do not accede to this request. In our opinion, the case has to be sent back to the High Court for all the other objections being considered on their merits as may arise on the pleadings and in law. We are not to be understood as having expressed any opinion as to whether any such point arises on their merits.
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1[ds]It is obvious that this is not the function of the proviso to S. 4 (1) of the Act, for the operative words in the main part of S. 4(1) prohibit all appeals from the appellate orders of the Commissioner. The primary purpose of the proviso now under consideration is, it is apparent, to provide a substitute or an alternative remedy to that which is prohibited by the main part of S. 4(1). There is, therefore, no question as to the proviso carving out any portion out of the area covered by the main part and leaving the other part unaffected. What we have stated earlier should suffice to establish that the proviso now before us is really not a proviso in the accepted sense but an independent legislative provision by which to a remedy which is prohibited by the main part of the section, an alternative is provided. It is, further obvious to us that the proviso is not co-extensive with but covers a field wider than the main part of S.4 (1). If its function were only to provide a remedy alternative to a further appeal from the orders of the Commissioner and no more and that is the contention of the learned Counsel for the respondent, the words of any order passed by...... a Municipal authority should have no place in it. If this submission has to be accepted, the proviso would have to be read deleting the words "or other Municipal authority". As already pointed out, this rejection cannot be done on any accepted principle of statutory construction, for the words have meaning and effect can be given to them without the same conflicting with tiny other operative provision of theargument though plausible does not appear to us to be sound or maintainable on any proper construction of the words employed. If the learned Counsel is right, the clause would read "The Government may.......... call for any record of any case........... of any appealable order passed by a Commissioner or by a Municipal authority and may pass such orders..........." This would show how impossible it is to read the word order as confined to appealable orders which is what the learned Counsel suggests as the proper construction of the proviso, for it would at once be seen that there are no appealable orders of the Commissioner, since S.4 (1) has in terms prohibited all appeals. As the words orders of are not repeated before the words a Municipal authority, you cannot read word order as meaning orders declared final by this Act when applied to the orders of a Commissioner and as meaning "orders subject to appeal under a Municipal Law" in relation to the orders of a Municipal Authority. Besides, it would be some what anomalous that S. 3 should provide the forum for appeals which lay under the Municipal Act and in regard to the same matter, i.e., those in regard to which a Municipal appeal would lie, make a parallel provision for a revision by the State Government without clearer words. We do not consider it necessary to examine this matter further or to examine the other anomalies which this construction might involve, because we are in this case concerned with a non-appealable order of a Municipal authority. So far as they are concerned, such orders would be in exactly the same situation as regards their finality as the orders of a Commissioner, which by reason of the positive provisions of S. 3 (3) and S. 4 (1) are expressly declared final by the Act. It appears to us that the more reasonable construction is to construe the words orders of a Municipal authority as including final orders not subject to a Municipal appeal which would fall into the same category as appellate orders of a Commissioner which are declared final by the Act.16. It is, no doubt, true that so to construe these words could empower a State Government to interfere in Municipal affairs and this on an extensive scale and enable them to pass orders in revision, on matters which under the relevant Municipal law were final and not subject to any appeal. That is an aspect which appealed greatly to the learned Judges of the High Court and as we have pointed out earlier, forms the main reasoning on which they have arrived at the construction of the proviso. Though we are not unmindful of the consequences and implications of this construction, we consider that it would not be proper to take these factors into consideration where the words of the statute are clear and what we have stated earlier should suffice to show that, in our opinion the opposite construction is not reasonably open without doing violence to the language of the enactment either by omitting the words "or other Municipal authorities", altogether or by rewriting the section so as to achieve the desired result. We do not conceive this to be the function of a Court of construction but that it must be left to other organs of Government. We, therefore, consider that the learned Judges of the High Court were in error in holding that the State Government had no power to entertain the revision against the order of the President of the Municipal Council and to quash it on thatour opinion, the case has to be sent back to the High Court for all the other objections being considered on their merits as may arise on the pleadings and in law. We are not to be understood as having expressed any opinion as to whether any such point arises on their merits.With due respect to the learned Judges we do not find it possible to agree that it is permissible to omit or delete words from the operative part of an enactment, which have meaning and significance in their normal connotation merely on the ground that according to the view of the Court it is inconsistent with the spirit underlying the enactment. Unless the words are unmeaning or absurd, it would not be in accord with any sound principle of construction to refuse to give effect to the provisions of a statute on the very elusive ground that to give them their ordinary meaning leads to consequences which are not in accord with the notions of propriety or justice entertained by the Court. No doubt, if there are other provisions in the statute which conflict with them, the Court may prefer the one and reject the other on the ground of repugnance. Surely, that is not the position here. Again, when the words in the statute are reasonably capable of more than one interpretation, the object and purpose of the statute, a general conspectus of its provisions and the context in which they occur might induce a Court to adopt a more liberal or a more strict view of the provisions, as the case may be, as being more consonant with the underlying purpose. But we do not consider it possible to reject words used in an enactment merey for the reason that they do not accord with the context in which they occur, or with the purpose of the legislation as gathered from the preamble or long title. The preamble may, no doubt, be used to solve any ambiguity or to fix the meaning of words which may have more than one meaning, but it can, however, not be used to eliminate as redundant or unintended, the operative provisions of a statute. Besides, if one strictly applied this rule of interpretation that the Act did not intend to make provision for nothing except a forum for appeals the whole of the proviso even where it provided for revisions against the orders of a Commissioner, must be rejected as travelling beyond the long title and the preamble, for in neither of them is reference made to revisions. We do not, therefore, consider that in the case of the Act under consideration, it would be possible to reject the words "or a municipal authority" by reference to the preamble and the long title.
| 1 | 4,409 | 1,465 |
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construction, for the words have meaning and effect can be given to them without the same conflicting with tiny other operative provision of the Act.15. If the argument that the words should be rejected is not accepted and some meaning has to be attributed to these words, the alternative submission of the learned Counsel for the respondent was that we should read the words orders passed as confined to orders which were appealable orders for which an appeal was provided under a Municipal law. In this connection it was urged that the intention of the framers of the Act was merely to enact a legislation providing for a uniform forum in which appeals for which diverse provisions were made in the Municipal laws of the several Municipalities in the State were to be entertained and disposed of and it would be inconsistent with such an intention to hold that they made a provision for Government revising orders which according to the relevant Municipal Law were final and not subject to any appeal. This argument though plausible does not appear to us to be sound or maintainable on any proper construction of the words employed. If the learned Counsel is right, the clause would read "The Government may.......... call for any record of any case........... of any appealable order passed by a Commissioner or by a Municipal authority and may pass such orders..........." This would show how impossible it is to read the word order as confined to appealable orders which is what the learned Counsel suggests as the proper construction of the proviso, for it would at once be seen that there are no appealable orders of the Commissioner, since S.4 (1) has in terms prohibited all appeals. As the words orders of are not repeated before the words a Municipal authority, you cannot read word order as meaning orders declared final by this Act when applied to the orders of a Commissioner and as meaning "orders subject to appeal under a Municipal Law" in relation to the orders of a Municipal Authority. Besides, it would be some what anomalous that S. 3 should provide the forum for appeals which lay under the Municipal Act and in regard to the same matter, i.e., those in regard to which a Municipal appeal would lie, make a parallel provision for a revision by the State Government without clearer words. We do not consider it necessary to examine this matter further or to examine the other anomalies which this construction might involve, because we are in this case concerned with a non-appealable order of a Municipal authority. So far as they are concerned, such orders would be in exactly the same situation as regards their finality as the orders of a Commissioner, which by reason of the positive provisions of S. 3 (3) and S. 4 (1) are expressly declared final by the Act. It appears to us that the more reasonable construction is to construe the words orders of a Municipal authority as including final orders not subject to a Municipal appeal which would fall into the same category as appellate orders of a Commissioner which are declared final by the Act.16. It is, no doubt, true that so to construe these words could empower a State Government to interfere in Municipal affairs and this on an extensive scale and enable them to pass orders in revision, on matters which under the relevant Municipal law were final and not subject to any appeal. That is an aspect which appealed greatly to the learned Judges of the High Court and as we have pointed out earlier, forms the main reasoning on which they have arrived at the construction of the proviso. Though we are not unmindful of the consequences and implications of this construction, we consider that it would not be proper to take these factors into consideration where the words of the statute are clear and what we have stated earlier should suffice to show that, in our opinion the opposite construction is not reasonably open without doing violence to the language of the enactment either by omitting the words "or other Municipal authorities", altogether or by rewriting the section so as to achieve the desired result. We do not conceive this to be the function of a Court of construction but that it must be left to other organs of Government. We, therefore, consider that the learned Judges of the High Court were in error in holding that the State Government had no power to entertain the revision against the order of the President of the Municipal Council and to quash it on that ground.17. As already indicatd in the Writ Petition under Art. 226 filed by the respondent to the High Court she based her attack on the validity of the order of the State Government not merely on the ground that it was beyond their revisional jurisdiction, but on various other grounds. The learned Judges of the High Court having reached a conclusion in her favour on this ground, observed in the course of their judgment:"The order of the Government is without jurisdiction and must be quashed on this ground alone. It is not necessary to go into the other grounds raised in this petition."The learned Counsel for the respondent drew our attention to this passage and submitted that we should allow the appeal on our construction of the proviso to S. 4 (1), we should remand the case to the High Court for considering the other objections that were raised. Though the learned Counsel for the appellant submitted that we might ourselves deal with the other points, we do not accede to this request. In our opinion, the case has to be sent back to the High Court for all the other objections being considered on their merits as may arise on the pleadings and in law. We are not to be understood as having expressed any opinion as to whether any such point arises on their merits.
### Response:
1
### Explanation:
how impossible it is to read the word order as confined to appealable orders which is what the learned Counsel suggests as the proper construction of the proviso, for it would at once be seen that there are no appealable orders of the Commissioner, since S.4 (1) has in terms prohibited all appeals. As the words orders of are not repeated before the words a Municipal authority, you cannot read word order as meaning orders declared final by this Act when applied to the orders of a Commissioner and as meaning "orders subject to appeal under a Municipal Law" in relation to the orders of a Municipal Authority. Besides, it would be some what anomalous that S. 3 should provide the forum for appeals which lay under the Municipal Act and in regard to the same matter, i.e., those in regard to which a Municipal appeal would lie, make a parallel provision for a revision by the State Government without clearer words. We do not consider it necessary to examine this matter further or to examine the other anomalies which this construction might involve, because we are in this case concerned with a non-appealable order of a Municipal authority. So far as they are concerned, such orders would be in exactly the same situation as regards their finality as the orders of a Commissioner, which by reason of the positive provisions of S. 3 (3) and S. 4 (1) are expressly declared final by the Act. It appears to us that the more reasonable construction is to construe the words orders of a Municipal authority as including final orders not subject to a Municipal appeal which would fall into the same category as appellate orders of a Commissioner which are declared final by the Act.16. It is, no doubt, true that so to construe these words could empower a State Government to interfere in Municipal affairs and this on an extensive scale and enable them to pass orders in revision, on matters which under the relevant Municipal law were final and not subject to any appeal. That is an aspect which appealed greatly to the learned Judges of the High Court and as we have pointed out earlier, forms the main reasoning on which they have arrived at the construction of the proviso. Though we are not unmindful of the consequences and implications of this construction, we consider that it would not be proper to take these factors into consideration where the words of the statute are clear and what we have stated earlier should suffice to show that, in our opinion the opposite construction is not reasonably open without doing violence to the language of the enactment either by omitting the words "or other Municipal authorities", altogether or by rewriting the section so as to achieve the desired result. We do not conceive this to be the function of a Court of construction but that it must be left to other organs of Government. We, therefore, consider that the learned Judges of the High Court were in error in holding that the State Government had no power to entertain the revision against the order of the President of the Municipal Council and to quash it on thatour opinion, the case has to be sent back to the High Court for all the other objections being considered on their merits as may arise on the pleadings and in law. We are not to be understood as having expressed any opinion as to whether any such point arises on their merits.With due respect to the learned Judges we do not find it possible to agree that it is permissible to omit or delete words from the operative part of an enactment, which have meaning and significance in their normal connotation merely on the ground that according to the view of the Court it is inconsistent with the spirit underlying the enactment. Unless the words are unmeaning or absurd, it would not be in accord with any sound principle of construction to refuse to give effect to the provisions of a statute on the very elusive ground that to give them their ordinary meaning leads to consequences which are not in accord with the notions of propriety or justice entertained by the Court. No doubt, if there are other provisions in the statute which conflict with them, the Court may prefer the one and reject the other on the ground of repugnance. Surely, that is not the position here. Again, when the words in the statute are reasonably capable of more than one interpretation, the object and purpose of the statute, a general conspectus of its provisions and the context in which they occur might induce a Court to adopt a more liberal or a more strict view of the provisions, as the case may be, as being more consonant with the underlying purpose. But we do not consider it possible to reject words used in an enactment merey for the reason that they do not accord with the context in which they occur, or with the purpose of the legislation as gathered from the preamble or long title. The preamble may, no doubt, be used to solve any ambiguity or to fix the meaning of words which may have more than one meaning, but it can, however, not be used to eliminate as redundant or unintended, the operative provisions of a statute. Besides, if one strictly applied this rule of interpretation that the Act did not intend to make provision for nothing except a forum for appeals the whole of the proviso even where it provided for revisions against the orders of a Commissioner, must be rejected as travelling beyond the long title and the preamble, for in neither of them is reference made to revisions. We do not, therefore, consider that in the case of the Act under consideration, it would be possible to reject the words "or a municipal authority" by reference to the preamble and the long title.
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Union Of India Vs. Dinesh Prasad
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as he was denied a fair trial. In our view, the learned Single Judge was clearly in error in allowing such argument. Firstly, the argument was raised without any foundation in the writ petition. No plea of actual or likelihood of bias was raised in the writ petition. There was also no plea taken in the writ petition that he was denied fair trial in the course of summary court-martial. Secondly, and more importantly, the learned Single Judge overlooked and ignored the statutory provisions referred to hereinabove. The Division Bench also failed in considering the matter in right perspective and in light of the provisions in the Army Act and the Army Rules. 19. Absence without leave is one of the offences under the Army Act. On conviction by the court-martial of the said offence, the offender is liable to suffer imprisonment for a term which may extend to three years. Alternatively, for such offence any of the punishments provided in Section 71 may be awarded by the court- martial. Clause (e) of Section 71 provides dismissal from the service as one of the punishments awardable by the court-martial for such an offence. The respondent was served with the charge sheet which was in conformity with Rule 31 of the Army Rules and Sections 39 and 116 of the Army Act. The respondent admittedly absented himself from unit line for 808 days. He did not obtain any leave. He pleaded guilty before the summary court-martial. The summary court-martial followed the procedure provided under Rule 116 of the Army Rules and awarded punishment of his dismissal from service. Neither constitution of the summary court-martial nor the procedure followed by that court can be said to suffer from any illegality. The facts are eloquent inasmuch as respondent remained absent without leave for more than two years in the service of about five years. The order of dismissal, in the facts and circumstances of the case, by no stretch of imagination, can be said to be disproportionate or oppressive or founded on extraneous consideration. 20. The decision of this Court in Vidya Parkash v. Union of India and Ors [((1988) 2 SCC 459) ]. squarely applies to the present situation. Unfortunately, the judgment in Vidya Parkash1 was not brought to the notice of the Single Judge and the Division Bench. The facts in Vidya Parkash1 were these: the appellant was posted as Jawan in Panagarh. He left Panagarh with his wife and children for Kanpur without taking any leave. According to Vidya Parkash, he became unwell and he was under treatment of a doctor. When he reported to Panagarh unit with his fitness certificate, he was served with a charge sheet wherein it was ordered by Major P.S. Mahant that he would be tried by summary court-martial. The summary court- martial which was presided over by Major P.S. Mahant ordered his dismissal from service. Vidya Parkash challenged that order in a writ petition before Delhi High Court. Inter alia, a plea was set up that the commanding officer Major P.S. Mahant was not legally competent to preside over a summary court-martial. The Division Bench of the Delhi High Court dismissed the writ petition. It was held that no objection was taken as to the competence of Major P.S. Mahant to act as a Judge in summary court-martial. It was from the order of the Delhi High Court that the matter reached this Court. This Court considered Sections 108 and 116 of the Army Act, Rule 39(2) of the Army Rules and held that the summary court martial held by the commanding officer Major P.S. Mahant was in accordance with the provisions of Section 116 of the Army Act. This Court further observed : “13 - The Commanding Officer of the Corps, Department or Detachment of the Regular Army to which the appellant belongs, is quite competent in accordance with the provisions of Section 116 of the said Act and as such the constitution of the summary court martial by the Commanding Officer of the Corps cannot be questioned as illegal or incompetent. It is neither a general court martial nor a district court martial where the appellants case was tried and decided. In case of general court martial or district court martial Rule 39(2) of the Army Rules, 1954 is applicable and the Commanding Officer is not competent to convene general or district court martial. The summary court martial was held by the Commanding Officer of the corps, Major P.S. Mahant and there are two other officers including Capt. K.J. Singh and another officer to attend the proceedings. In such circumstances, the summary court martial having been convened by the Commanding Officer of the corps according to the provisions of the Army Act, 1950, the first submission made on behalf of the appellant fails.” 21. The legal position exposited by this Court in Vidya Parkash renders the impugned judgments unsustainable. 22. Learned counsel for the respondent placed heavy reliance upon the decisions of this Court in Punjab National Bank and Ors. v. Kunj Behari Misra [(1998) 7 SCC 84] , Maneka Gandhi v. Union of India & Anr. [AIR 1978 SC 597 ] and Roop Singh Negi v. Punjab National Bank & Ors. [(2009) 2 SCC 570] , in support of his submission that the order of dismissal from service by the summary court-martial was in violation of principles of natural justice. We are afraid none of these decisions has any application to the facts of the present case. There is no violation of principles of natural justice. No illegality has been committed in convening the summary court-martial by the commanding officer nor there is any illegality in the conduct of the summary court- martial. The respondent pleaded guilty to the charge before the summary court-martial and the summary court-martial found him guilty. It was only then that the order of dismissing the respondent from service was passed. It is now settled that no reasons are required to be recorded by the court-martial.
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1[ds]There is no violation of principles of natural justice. No illegality has been committed in convening the summary court-martial by the commanding officer nor there is any illegality in the conduct of the summary court- martial. The respondent pleaded guilty to the charge before the summary court-martial and the summary court-martial found him guilty. It was only then that the order of dismissing the respondent from service was passed. It is now settled that no reasons are required to be recorded by the
| 1 | 4,215 | 91 |
### 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:
as he was denied a fair trial. In our view, the learned Single Judge was clearly in error in allowing such argument. Firstly, the argument was raised without any foundation in the writ petition. No plea of actual or likelihood of bias was raised in the writ petition. There was also no plea taken in the writ petition that he was denied fair trial in the course of summary court-martial. Secondly, and more importantly, the learned Single Judge overlooked and ignored the statutory provisions referred to hereinabove. The Division Bench also failed in considering the matter in right perspective and in light of the provisions in the Army Act and the Army Rules. 19. Absence without leave is one of the offences under the Army Act. On conviction by the court-martial of the said offence, the offender is liable to suffer imprisonment for a term which may extend to three years. Alternatively, for such offence any of the punishments provided in Section 71 may be awarded by the court- martial. Clause (e) of Section 71 provides dismissal from the service as one of the punishments awardable by the court-martial for such an offence. The respondent was served with the charge sheet which was in conformity with Rule 31 of the Army Rules and Sections 39 and 116 of the Army Act. The respondent admittedly absented himself from unit line for 808 days. He did not obtain any leave. He pleaded guilty before the summary court-martial. The summary court-martial followed the procedure provided under Rule 116 of the Army Rules and awarded punishment of his dismissal from service. Neither constitution of the summary court-martial nor the procedure followed by that court can be said to suffer from any illegality. The facts are eloquent inasmuch as respondent remained absent without leave for more than two years in the service of about five years. The order of dismissal, in the facts and circumstances of the case, by no stretch of imagination, can be said to be disproportionate or oppressive or founded on extraneous consideration. 20. The decision of this Court in Vidya Parkash v. Union of India and Ors [((1988) 2 SCC 459) ]. squarely applies to the present situation. Unfortunately, the judgment in Vidya Parkash1 was not brought to the notice of the Single Judge and the Division Bench. The facts in Vidya Parkash1 were these: the appellant was posted as Jawan in Panagarh. He left Panagarh with his wife and children for Kanpur without taking any leave. According to Vidya Parkash, he became unwell and he was under treatment of a doctor. When he reported to Panagarh unit with his fitness certificate, he was served with a charge sheet wherein it was ordered by Major P.S. Mahant that he would be tried by summary court-martial. The summary court- martial which was presided over by Major P.S. Mahant ordered his dismissal from service. Vidya Parkash challenged that order in a writ petition before Delhi High Court. Inter alia, a plea was set up that the commanding officer Major P.S. Mahant was not legally competent to preside over a summary court-martial. The Division Bench of the Delhi High Court dismissed the writ petition. It was held that no objection was taken as to the competence of Major P.S. Mahant to act as a Judge in summary court-martial. It was from the order of the Delhi High Court that the matter reached this Court. This Court considered Sections 108 and 116 of the Army Act, Rule 39(2) of the Army Rules and held that the summary court martial held by the commanding officer Major P.S. Mahant was in accordance with the provisions of Section 116 of the Army Act. This Court further observed : “13 - The Commanding Officer of the Corps, Department or Detachment of the Regular Army to which the appellant belongs, is quite competent in accordance with the provisions of Section 116 of the said Act and as such the constitution of the summary court martial by the Commanding Officer of the Corps cannot be questioned as illegal or incompetent. It is neither a general court martial nor a district court martial where the appellants case was tried and decided. In case of general court martial or district court martial Rule 39(2) of the Army Rules, 1954 is applicable and the Commanding Officer is not competent to convene general or district court martial. The summary court martial was held by the Commanding Officer of the corps, Major P.S. Mahant and there are two other officers including Capt. K.J. Singh and another officer to attend the proceedings. In such circumstances, the summary court martial having been convened by the Commanding Officer of the corps according to the provisions of the Army Act, 1950, the first submission made on behalf of the appellant fails.” 21. The legal position exposited by this Court in Vidya Parkash renders the impugned judgments unsustainable. 22. Learned counsel for the respondent placed heavy reliance upon the decisions of this Court in Punjab National Bank and Ors. v. Kunj Behari Misra [(1998) 7 SCC 84] , Maneka Gandhi v. Union of India & Anr. [AIR 1978 SC 597 ] and Roop Singh Negi v. Punjab National Bank & Ors. [(2009) 2 SCC 570] , in support of his submission that the order of dismissal from service by the summary court-martial was in violation of principles of natural justice. We are afraid none of these decisions has any application to the facts of the present case. There is no violation of principles of natural justice. No illegality has been committed in convening the summary court-martial by the commanding officer nor there is any illegality in the conduct of the summary court- martial. The respondent pleaded guilty to the charge before the summary court-martial and the summary court-martial found him guilty. It was only then that the order of dismissing the respondent from service was passed. It is now settled that no reasons are required to be recorded by the court-martial.
### Response:
1
### Explanation:
There is no violation of principles of natural justice. No illegality has been committed in convening the summary court-martial by the commanding officer nor there is any illegality in the conduct of the summary court- martial. The respondent pleaded guilty to the charge before the summary court-martial and the summary court-martial found him guilty. It was only then that the order of dismissing the respondent from service was passed. It is now settled that no reasons are required to be recorded by the
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Firdaus Vs. Oriental Insurance Co. Ltd.
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was not always in a position to pay compensation or damages to the injured or to the dependants of the deceased and in that event the claimants could not get the damages. To meet such a situation, various legislations were enacted in England. For the first time, Third Parties (Rights Against Insurers) Act, 1930 was enacted, the provisions of which find place in Section 97 of the Act which gave to third party right to sue directly against the insurer. Subsequently, the Road Traffic Act, 1930 was enacted which provided for compulsory insurance of motor vehicles. The provisions of the said Act was engrafted in Section 95 of the Act. Under Section 38 of English Act, 1930, certain conditions of insurance policy were made ineffective so far as the third parties were concerned. The object behind the aforesaid legislation was that third party right should not suffer on account of failure to comply with those terms of the insurance policy. Section 94 of the Act gives protection to third party in respect of death or bodily injury or damage to the property while using the vehicle in public place and, therefore, the insurance of vehicle had been made compulsory under Section 94 read with Section 95 of the Act.4. A perusal of Sections 94 and 95 would further show that the said provisions do not make compulsory insurance to the vehicle or to the owners. Thus, it is manifest that compulsory insurance is for the benefit of third parties. The scheme of the Act shows that an insurance policy can cover three kinds of risk, i.e. owner of the vehicle; property (vehicle) and third party. The liability of the owner to have compulsory insurance is only in regard to the third party and not to the property. Section 95(5) of the Act runs as follows:"95. (5) Notwithstanding anything elsewhere contained in any law, a person issuing a policy of insurance under this section shall be liable to indemnify the person or classes of person specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of person."5. The aforesaid provision shows that it was intended to cover two legal objectives. Firstly, that no one who was not a party to a contract would bring an action on a contract; and secondly, that a person who has no interest in the subject matter of an insurance can claim the benefit of an insurance. Thus, once the vehicle is insured, the owner as well as any other person can use the vehicle with the consent of the owner. Section 94 does not provide that any person who will use the vehicle shall insure the vehicle in respect of his separate use.6. On an analysis of Section 94 and 95, we further find that there are two third parties when a vehicle is transferred by the owner to a purchaser. The purchaser is one of the third parties to the contract and other third party is for whose benefit the vehicle was insured. So far, the transferee who is the third party in the contract, cannot get any personal benefit under the policy unless there is a compliance of the provisions of the Act. However, so far as third party injured or victim is concerned, he can enforce liability undertaken by the insurer.7. For the aforesaid reasons, we hold that whenever a vehicle which is covered by the insurance policy is transferred to a transferee, the liability of insurer does not cease so far as the third party/victim is concerned, even if the owner or purchaser does not give any intimation as required under the provisions of the Act.14. In Rikhi Ram Case (Supra), although this Court considered the provisions of Motor Vehicles Act, 1939, but the Motor Vehicles Act, 1988 also contains the similar provisions under Section 146, 147 and 157 of the Act. Hence, the ratio of judgment in Rikhi Ram case is fully applicable in the facts of the present case also.15. Section 157 of the Motor Vehicles Act, 1988 clinches the issue. Section 157 sub-section(1) contains the deeming provision that "the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of this transfer." Sub-section(1), Section 157 which is relevant is quoted as below:" 157. Transfer of certificate of insurance - (1) Where a person in whose favour the certificate of insurance has been issued in accordance with the provisions of this Chapter transfers to another person the ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of its transfer.[Explanation.- For the removal of doubts, it is hereby declared that such deemed transfer shall include transfer of rights and liabilities of the said certificate of insurance and policy of insurance]."16. In view of the above, it is not necessary for us to give any concluded finding regarding ownership of the vehicle No.HR 2 G 1875 on the date of accident for the purpose of this case. In either of the eventuality, i.e. whether defendant no.1 was the owner of the vehicle on the date of the accident, or defendant no.4 was the owner of the vehicle, the liability of Oriental Insurance Co. Ltd. continues and Workmen compensation Commissioner has rightly fastened the liability on the Insurance Company. The remand made by the High court to find out as to whether Parvez Khan was an employee of the defendant no.1 or not, was unnecessary.17. We are thus of the opinion that the High court committed an error in setting aside the order of Workmen Compensation Commissioner.
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1[ds]There is no dispute that defendant no.1 was the owner of the vehicle who got it insured with the Oriental Insurance Co. Ltd. The Workmen Compensation Commissioner has also observed that defendant no.1 failed to produce the Registration Certificate of the vehicle and since the name of defendant no.1 is in the insurance policy as owner of the vehicle, which points out that the vehicle is in the name of defendant no.1 till date. Before the High Court also, no material has been placed on the record which proved that vehicle stood in the name of defendant no.4. The Workmen Compensation Commissioner had come to the conclusion that defendant no.1 still continues to the owner of the vehicle and defendant No.4 has only looking after the vehicle. The High court having not returned any finding that vehicle was transferred to defendant no.4, ought not to have set aside the award of the Workmen Compensation Commissioner. The reliance on the mere submission of the claimant that his son was an employee of Mohd. Anisdefendant no.4 has no significance. Abdul Khalid the claimant was not the person who has knowledge of ownership of the truck except what he was told by his deceased son. When the Registration Certificate of the vehicle was not produced by defendant no.1 the High court ought to have drawn the adverse inference which was drawn by Workmen Compensation Commissioner against defendant no.1 regarding the ownership of the vehicle.13. Even if it is assumed for the sake of arguments that vehicle was transferred from defendant no.1 to defendant no.4, there will be no consequence with regard to liability of Oriental Insurance Co. Ltd. to pay compensation.In Rikhi Ram Case (Supra), although this Court considered the provisions of Motor Vehicles Act, 1939, but the Motor Vehicles Act, 1988 also contains the similar provisions under Section 146, 147 and 157 of the Act. Hence, the ratio of judgment in Rikhi Ram case is fully applicable in the facts of the present case also.In view of the above, it is not necessary for us to give any concluded finding regarding ownership of the vehicle No.HR 2 G 1875 on the date of accident for the purpose of this case. In either of the eventuality, i.e. whether defendant no.1 was the owner of the vehicle on the date of the accident, or defendant no.4 was the owner of the vehicle, the liability of Oriental Insurance Co. Ltd. continues and Workmen compensation Commissioner has rightly fastened the liability on the Insurance Company. The remand made by the High court to find out as to whether Parvez Khan was an employee of the defendant no.1 or not, was unnecessary.17. We are thus of the opinion that the High court committed an error in setting aside the order of Workmen Compensation Commissioner.
| 1 | 2,914 | 503 |
### 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:
was not always in a position to pay compensation or damages to the injured or to the dependants of the deceased and in that event the claimants could not get the damages. To meet such a situation, various legislations were enacted in England. For the first time, Third Parties (Rights Against Insurers) Act, 1930 was enacted, the provisions of which find place in Section 97 of the Act which gave to third party right to sue directly against the insurer. Subsequently, the Road Traffic Act, 1930 was enacted which provided for compulsory insurance of motor vehicles. The provisions of the said Act was engrafted in Section 95 of the Act. Under Section 38 of English Act, 1930, certain conditions of insurance policy were made ineffective so far as the third parties were concerned. The object behind the aforesaid legislation was that third party right should not suffer on account of failure to comply with those terms of the insurance policy. Section 94 of the Act gives protection to third party in respect of death or bodily injury or damage to the property while using the vehicle in public place and, therefore, the insurance of vehicle had been made compulsory under Section 94 read with Section 95 of the Act.4. A perusal of Sections 94 and 95 would further show that the said provisions do not make compulsory insurance to the vehicle or to the owners. Thus, it is manifest that compulsory insurance is for the benefit of third parties. The scheme of the Act shows that an insurance policy can cover three kinds of risk, i.e. owner of the vehicle; property (vehicle) and third party. The liability of the owner to have compulsory insurance is only in regard to the third party and not to the property. Section 95(5) of the Act runs as follows:"95. (5) Notwithstanding anything elsewhere contained in any law, a person issuing a policy of insurance under this section shall be liable to indemnify the person or classes of person specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of person."5. The aforesaid provision shows that it was intended to cover two legal objectives. Firstly, that no one who was not a party to a contract would bring an action on a contract; and secondly, that a person who has no interest in the subject matter of an insurance can claim the benefit of an insurance. Thus, once the vehicle is insured, the owner as well as any other person can use the vehicle with the consent of the owner. Section 94 does not provide that any person who will use the vehicle shall insure the vehicle in respect of his separate use.6. On an analysis of Section 94 and 95, we further find that there are two third parties when a vehicle is transferred by the owner to a purchaser. The purchaser is one of the third parties to the contract and other third party is for whose benefit the vehicle was insured. So far, the transferee who is the third party in the contract, cannot get any personal benefit under the policy unless there is a compliance of the provisions of the Act. However, so far as third party injured or victim is concerned, he can enforce liability undertaken by the insurer.7. For the aforesaid reasons, we hold that whenever a vehicle which is covered by the insurance policy is transferred to a transferee, the liability of insurer does not cease so far as the third party/victim is concerned, even if the owner or purchaser does not give any intimation as required under the provisions of the Act.14. In Rikhi Ram Case (Supra), although this Court considered the provisions of Motor Vehicles Act, 1939, but the Motor Vehicles Act, 1988 also contains the similar provisions under Section 146, 147 and 157 of the Act. Hence, the ratio of judgment in Rikhi Ram case is fully applicable in the facts of the present case also.15. Section 157 of the Motor Vehicles Act, 1988 clinches the issue. Section 157 sub-section(1) contains the deeming provision that "the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of this transfer." Sub-section(1), Section 157 which is relevant is quoted as below:" 157. Transfer of certificate of insurance - (1) Where a person in whose favour the certificate of insurance has been issued in accordance with the provisions of this Chapter transfers to another person the ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of its transfer.[Explanation.- For the removal of doubts, it is hereby declared that such deemed transfer shall include transfer of rights and liabilities of the said certificate of insurance and policy of insurance]."16. In view of the above, it is not necessary for us to give any concluded finding regarding ownership of the vehicle No.HR 2 G 1875 on the date of accident for the purpose of this case. In either of the eventuality, i.e. whether defendant no.1 was the owner of the vehicle on the date of the accident, or defendant no.4 was the owner of the vehicle, the liability of Oriental Insurance Co. Ltd. continues and Workmen compensation Commissioner has rightly fastened the liability on the Insurance Company. The remand made by the High court to find out as to whether Parvez Khan was an employee of the defendant no.1 or not, was unnecessary.17. We are thus of the opinion that the High court committed an error in setting aside the order of Workmen Compensation Commissioner.
### Response:
1
### Explanation:
There is no dispute that defendant no.1 was the owner of the vehicle who got it insured with the Oriental Insurance Co. Ltd. The Workmen Compensation Commissioner has also observed that defendant no.1 failed to produce the Registration Certificate of the vehicle and since the name of defendant no.1 is in the insurance policy as owner of the vehicle, which points out that the vehicle is in the name of defendant no.1 till date. Before the High Court also, no material has been placed on the record which proved that vehicle stood in the name of defendant no.4. The Workmen Compensation Commissioner had come to the conclusion that defendant no.1 still continues to the owner of the vehicle and defendant No.4 has only looking after the vehicle. The High court having not returned any finding that vehicle was transferred to defendant no.4, ought not to have set aside the award of the Workmen Compensation Commissioner. The reliance on the mere submission of the claimant that his son was an employee of Mohd. Anisdefendant no.4 has no significance. Abdul Khalid the claimant was not the person who has knowledge of ownership of the truck except what he was told by his deceased son. When the Registration Certificate of the vehicle was not produced by defendant no.1 the High court ought to have drawn the adverse inference which was drawn by Workmen Compensation Commissioner against defendant no.1 regarding the ownership of the vehicle.13. Even if it is assumed for the sake of arguments that vehicle was transferred from defendant no.1 to defendant no.4, there will be no consequence with regard to liability of Oriental Insurance Co. Ltd. to pay compensation.In Rikhi Ram Case (Supra), although this Court considered the provisions of Motor Vehicles Act, 1939, but the Motor Vehicles Act, 1988 also contains the similar provisions under Section 146, 147 and 157 of the Act. Hence, the ratio of judgment in Rikhi Ram case is fully applicable in the facts of the present case also.In view of the above, it is not necessary for us to give any concluded finding regarding ownership of the vehicle No.HR 2 G 1875 on the date of accident for the purpose of this case. In either of the eventuality, i.e. whether defendant no.1 was the owner of the vehicle on the date of the accident, or defendant no.4 was the owner of the vehicle, the liability of Oriental Insurance Co. Ltd. continues and Workmen compensation Commissioner has rightly fastened the liability on the Insurance Company. The remand made by the High court to find out as to whether Parvez Khan was an employee of the defendant no.1 or not, was unnecessary.17. We are thus of the opinion that the High court committed an error in setting aside the order of Workmen Compensation Commissioner.
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Cement Workers Karamchari Sangh Vs. M/S Jaipur Udyog Ltd.
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the company had paid to them the total sum of Rs.15.18 crores. The report further noted that according to the list furnished by the company 1173 workmen of the cement factory, 457 at Phallodi Quarry and 136 at Kanpur had not accepted the settlement and the total amount due to them under the settlement was Rs.10.23 crores. (Here it may be stated that before Justice Mathur one of the workmens union claimed that the lawful dues of the workers amounted to Rs.86 crores but the settlement was made for only 20-25 crores). 32. Mr.Rohatgi strongly contended that all the workmen who had received payment had done so in full and final settlement of their claims and they could no longer question the agreement. Those who had not accepted payments under the settlement were free to raise their claims in accordance with law but they too could not object to the settlement between the company and the other workmen who had accepted payments. 33. Interestingly, after the hearing of the case was closed yet another petition (I.A.No.15) was filed on behalf of GDCL on February 21, 2008 which was listed before the Court on February 29, 2008. In this petition, the company, making a complete departure from its earlier stand in regard to the settlement, stated as follows: The applicant submits that while the judgment has been reserved in the captioned matter, the applicant wants to put the controversy at rest and submits that, the applicant is ready and willing to get the dues of the workers, including those who have singed the settlement with the Respondent No.1 - Jaipur Udyog Ltd., to be adjudicated upon by any statutory authority appointed by this Honble Court. The applicant is filing the present application without prejudice to the arguments made before this Honble Court on 07.02.2008. The applicant submits that the present application is being made bona fide and in the interest of justice and in the interest of workers. Following the above statement, the prayer is made as follows: (a) Direct any statutory authority to adjudicate on the dues of the said workers, including those who have signed the settlement with the Respondent No.1 - Jaipur Udyog Ltd. within a period of two months; and (b) Pass an order as this Honble Court may deem fit and proper considering the facts and circumstances of the present case. By filing this petition JUL/GDCL, of its own accord, opens up the claims of all the workmen and makes a positive gesture in an attempt to satisfy the court that it has no intent to run away with the lawful claims of the workmen. 34. On hearing counsel for the parties and on a careful consideration of the materials on record, including the affidavits and documents filed by the different parties, we are of the opinion that the AAIFR can hardly be blamed for proceeding with the hearing of the appeal on September 6, 2001. If there was a communication gap between the High Court and the AAIFR it was due to the omission to correctly record the interim order of the High Court. The order that was produced before the AAIFR did not indicate that the proceeding of the appeal before it was stayed. The parties (creditors of the company) were strongly opposed to any adjournment. Under the circumstances, the AAIFR was within its rights to disallow the prayer for adjournment on behalf of JUL and to ask its counsel to make submissions on merits. We, therefore, feel that the strong displeasure against the AAIFR expressed by the High Court in its order of September 12, 2001 was quite uncalled for. We are further of the view that since the counsel for the appellant GUL declined to make submissions in support of the appeal even though repeatedly asked by the AAIFR, after the request for adjournment was turned down, there was no breach of the principles of natural justice. Having regard to the communication gap resulting from the mistake in recording its interim order, the High Court might have been justified in asking the AAIFR to pass a fresh order after giving the appellant JUL an opportunity of hearing. But the High Court was clearly in error in setting aside the final order passed by the AAFIR on the ground that it was passed in breach of the audi alteram partem rule. 35. We find much substance in the grievance raised by the respondent creditors and the workmen in regard to the delay in the final disposal of the matter. It is quite true that the delay only benefits JUL/GDCL and causes great prejudice to the creditors and deep distress to the workmen. We are also conscious that seven years have passed by while the matter lay pending, first before the High Court and then before this court. Had the appeal not come to this court, the matter in all probability would have been concluded by now. 36. But for all this we are unable to overlook that JUL/GDCL were practically denied the remedy of appeal against the winding up order passed by the BIFR. We recall here the hackneyed but very useful maxim: justice should not only be done but it should also appear to have been done. We are, therefore, of the view that at least one chance should be afforded to JUL/GDCL to place their case before the AAIFR. 37. We are further of the view that central to the issue of rehabilitation or winding of the company is the question of the workmens dues. The dues of all other creditors are ascertainable without difficulty. But in case of the workmens dues there is great divergence between the claim of the workmen and what is accepted by the companys management. It is, therefore necessary to get the workmens dues authoritatively determined. Once the workmens dues too are known precisely that can be factored into a realistic revival scheme or accounted for in the winding up process, in case the eventuality arises.
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0[ds]34. On hearing counsel for the parties and on a careful consideration of the materials on record, including the affidavits and documents filed by the different parties, we are of the opinion that the AAIFR can hardly be blamed for proceeding with the hearing of the appeal on September 6, 2001. If there was a communication gap between the High Court and the AAIFR it was due to the omission to correctly record the interim order of the High Court. The order that was produced before the AAIFR did not indicate that the proceeding of the appeal before it was stayed. The parties (creditors of the company) were strongly opposed to any adjournment. Under the circumstances, the AAIFR was within its rights to disallow the prayer for adjournment on behalf of JUL and to ask its counsel to make submissions on merits. We, therefore, feel that the strong displeasure against the AAIFR expressed by the High Court in its order of September 12, 2001 was quite uncalled for. We are further of the view that since the counsel for the appellant GUL declined to make submissions in support of the appeal even though repeatedly asked by the AAIFR, after the request for adjournment was turned down, there was no breach of the principles of natural justice. Having regard to the communication gap resulting from the mistake in recording its interim order, the High Court might have been justified in asking the AAIFR to pass a fresh order after giving the appellant JUL an opportunity of hearing. But the High Court was clearly in error in setting aside the final order passed by the AAFIR on the ground that it was passed in breach of the audi alteram partem rule35. We find much substance in the grievance raised by the respondent creditors and the workmen in regard to the delay in the final disposal of the matter. It is quite true that the delay only benefits JUL/GDCL and causes great prejudice to the creditors and deep distress to the workmen. We are also conscious that seven years have passed by while the matter lay pending, first before the High Court and then before this court. Had the appeal not come to this court, the matter in all probability would have been concluded by now36. But for all this we are unable to overlook that JUL/GDCL were practically denied the remedy of appeal against the winding up order passed by the BIFR. We recall here the hackneyed but very useful maxim: justice should not only be done but it should also appear to have been done. We are, therefore, of the view that at least one chance should be afforded to JUL/GDCL to place their case before the AAIFR37. We are further of the view that central to the issue of rehabilitation or winding of the company is the question of the workmens dues. The dues of all other creditors are ascertainable without difficulty. But in case of the workmens dues there is great divergence between the claim of the workmen and what is accepted by the companys management. It is, therefore necessary to get the workmens dues authoritatively determined. Once the workmens dues too are known precisely that can be factored into a realistic revival scheme or accounted for in the winding up process, in case the eventuality arises.
| 0 | 7,349 | 603 |
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Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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the company had paid to them the total sum of Rs.15.18 crores. The report further noted that according to the list furnished by the company 1173 workmen of the cement factory, 457 at Phallodi Quarry and 136 at Kanpur had not accepted the settlement and the total amount due to them under the settlement was Rs.10.23 crores. (Here it may be stated that before Justice Mathur one of the workmens union claimed that the lawful dues of the workers amounted to Rs.86 crores but the settlement was made for only 20-25 crores). 32. Mr.Rohatgi strongly contended that all the workmen who had received payment had done so in full and final settlement of their claims and they could no longer question the agreement. Those who had not accepted payments under the settlement were free to raise their claims in accordance with law but they too could not object to the settlement between the company and the other workmen who had accepted payments. 33. Interestingly, after the hearing of the case was closed yet another petition (I.A.No.15) was filed on behalf of GDCL on February 21, 2008 which was listed before the Court on February 29, 2008. In this petition, the company, making a complete departure from its earlier stand in regard to the settlement, stated as follows: The applicant submits that while the judgment has been reserved in the captioned matter, the applicant wants to put the controversy at rest and submits that, the applicant is ready and willing to get the dues of the workers, including those who have singed the settlement with the Respondent No.1 - Jaipur Udyog Ltd., to be adjudicated upon by any statutory authority appointed by this Honble Court. The applicant is filing the present application without prejudice to the arguments made before this Honble Court on 07.02.2008. The applicant submits that the present application is being made bona fide and in the interest of justice and in the interest of workers. Following the above statement, the prayer is made as follows: (a) Direct any statutory authority to adjudicate on the dues of the said workers, including those who have signed the settlement with the Respondent No.1 - Jaipur Udyog Ltd. within a period of two months; and (b) Pass an order as this Honble Court may deem fit and proper considering the facts and circumstances of the present case. By filing this petition JUL/GDCL, of its own accord, opens up the claims of all the workmen and makes a positive gesture in an attempt to satisfy the court that it has no intent to run away with the lawful claims of the workmen. 34. On hearing counsel for the parties and on a careful consideration of the materials on record, including the affidavits and documents filed by the different parties, we are of the opinion that the AAIFR can hardly be blamed for proceeding with the hearing of the appeal on September 6, 2001. If there was a communication gap between the High Court and the AAIFR it was due to the omission to correctly record the interim order of the High Court. The order that was produced before the AAIFR did not indicate that the proceeding of the appeal before it was stayed. The parties (creditors of the company) were strongly opposed to any adjournment. Under the circumstances, the AAIFR was within its rights to disallow the prayer for adjournment on behalf of JUL and to ask its counsel to make submissions on merits. We, therefore, feel that the strong displeasure against the AAIFR expressed by the High Court in its order of September 12, 2001 was quite uncalled for. We are further of the view that since the counsel for the appellant GUL declined to make submissions in support of the appeal even though repeatedly asked by the AAIFR, after the request for adjournment was turned down, there was no breach of the principles of natural justice. Having regard to the communication gap resulting from the mistake in recording its interim order, the High Court might have been justified in asking the AAIFR to pass a fresh order after giving the appellant JUL an opportunity of hearing. But the High Court was clearly in error in setting aside the final order passed by the AAFIR on the ground that it was passed in breach of the audi alteram partem rule. 35. We find much substance in the grievance raised by the respondent creditors and the workmen in regard to the delay in the final disposal of the matter. It is quite true that the delay only benefits JUL/GDCL and causes great prejudice to the creditors and deep distress to the workmen. We are also conscious that seven years have passed by while the matter lay pending, first before the High Court and then before this court. Had the appeal not come to this court, the matter in all probability would have been concluded by now. 36. But for all this we are unable to overlook that JUL/GDCL were practically denied the remedy of appeal against the winding up order passed by the BIFR. We recall here the hackneyed but very useful maxim: justice should not only be done but it should also appear to have been done. We are, therefore, of the view that at least one chance should be afforded to JUL/GDCL to place their case before the AAIFR. 37. We are further of the view that central to the issue of rehabilitation or winding of the company is the question of the workmens dues. The dues of all other creditors are ascertainable without difficulty. But in case of the workmens dues there is great divergence between the claim of the workmen and what is accepted by the companys management. It is, therefore necessary to get the workmens dues authoritatively determined. Once the workmens dues too are known precisely that can be factored into a realistic revival scheme or accounted for in the winding up process, in case the eventuality arises.
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34. On hearing counsel for the parties and on a careful consideration of the materials on record, including the affidavits and documents filed by the different parties, we are of the opinion that the AAIFR can hardly be blamed for proceeding with the hearing of the appeal on September 6, 2001. If there was a communication gap between the High Court and the AAIFR it was due to the omission to correctly record the interim order of the High Court. The order that was produced before the AAIFR did not indicate that the proceeding of the appeal before it was stayed. The parties (creditors of the company) were strongly opposed to any adjournment. Under the circumstances, the AAIFR was within its rights to disallow the prayer for adjournment on behalf of JUL and to ask its counsel to make submissions on merits. We, therefore, feel that the strong displeasure against the AAIFR expressed by the High Court in its order of September 12, 2001 was quite uncalled for. We are further of the view that since the counsel for the appellant GUL declined to make submissions in support of the appeal even though repeatedly asked by the AAIFR, after the request for adjournment was turned down, there was no breach of the principles of natural justice. Having regard to the communication gap resulting from the mistake in recording its interim order, the High Court might have been justified in asking the AAIFR to pass a fresh order after giving the appellant JUL an opportunity of hearing. But the High Court was clearly in error in setting aside the final order passed by the AAFIR on the ground that it was passed in breach of the audi alteram partem rule35. We find much substance in the grievance raised by the respondent creditors and the workmen in regard to the delay in the final disposal of the matter. It is quite true that the delay only benefits JUL/GDCL and causes great prejudice to the creditors and deep distress to the workmen. We are also conscious that seven years have passed by while the matter lay pending, first before the High Court and then before this court. Had the appeal not come to this court, the matter in all probability would have been concluded by now36. But for all this we are unable to overlook that JUL/GDCL were practically denied the remedy of appeal against the winding up order passed by the BIFR. We recall here the hackneyed but very useful maxim: justice should not only be done but it should also appear to have been done. We are, therefore, of the view that at least one chance should be afforded to JUL/GDCL to place their case before the AAIFR37. We are further of the view that central to the issue of rehabilitation or winding of the company is the question of the workmens dues. The dues of all other creditors are ascertainable without difficulty. But in case of the workmens dues there is great divergence between the claim of the workmen and what is accepted by the companys management. It is, therefore necessary to get the workmens dues authoritatively determined. Once the workmens dues too are known precisely that can be factored into a realistic revival scheme or accounted for in the winding up process, in case the eventuality arises.
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Southern Pharmaceuticals and Chemicals Trichur and Others Vs. State of Kerala and Others Etc
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v. Zenith Lamp and chemicals Ltd. supra). The cost of supervisory charges can be sustained even if they are regarded as a fee for services rendered by the State or its instrumentalities. 34. The last ground on which the appellants took their stand is even less tenable. It is urged that r. 13 of the Kerala Rectified Spirit Rules, 1972, providing for the levy of excise duty on excess wastage of alcohol in the manufacture of medicinal and toilet preparations cannot be supported in terms of the charging provision contained in s. 17 of the Act. Rule 13 reads as follows:13(1) If the rectified spirit imported or purchased P under these rules is used for the manufacture of medicinal and toilet preparations which duty of excise is leviable under the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 (Centra l Act 16 of 1955), no duty shall be collected under the Abkari Act 1 of 1077 on so much quantity of alcohol, as is present in the finished product. (2) The assessment of duty under the Medicinal and Toilet Preparations Excise Duties) Act, 1955 (Central Act 16 of 1955) being applicable only to the quantity of spirit existing in the finished product, all spirit wasted during the course of manufacture of any medicinal or toilet preparation shall be assessable to duty under the Abkari Act, 1 of 1077. Provided that the Government may, in consultation with the Drugs Controller and the Chemical Examiner, by notification in the Gazette. permit such allowance a s they think fit for such wastages occurring during the manufacture. 35. No exception is taken to r. 13(1) which provides that no duty shall be collected under the Act on so much quantity of alcohol "as is present in the finished product ". The objection is to the validity of r. 13(2) in so far as it enables the levy of duty on excess wastage of alcohol. We find it difficult to appreciate the contention that r. 13(2) cannot be supported in terms of the charging provision in s. 17(f ). Rule 13(2) is nothing but a corollary of r. 13(1). On a combined reading of s. 17(f) and r. 8 read with the proviso thereof, no duty is chargeable on alcohol actually used in the manufacture of medicinal and toilet preparations. The Government fully realised that some margin for wastage should be allowed and, therefore inserted the proviso to r. 13(1). It provides that the Government may, in consultation with the Drugs Controller and the Chemical Examiner, by notification in the Gazette, permit such allowance as they think fit for such wastages occurring during the manufacture. Beyond the permissible limit, the State has the right to levy a duty on excess wastage of alcohol, i.e. On alcohol not accounted for. 36. In the connected Special Leave Petition, the petitioner, P. Krishna Wariyar, Managing Trustee, Arya Vaidyasala, Kottakkal, who is engaged in the business of manufacture for sale of ayurvedic medicinal preparations, challenges the validity of ss. 12A, 56A and 68A of the Act and rr. 5, 6 and 7 of the Kerala Spirituous Preparations Rules. 1969. Apart from the question of legislative competence, two other grounds were raised: (1) the power to restrict the quantity of medicinal preparations to be manufactured, by the Commissioner under s. 12 cannot be exercised in relation to ayurvedic preparations as alcohol is self-generated in the process of manufacture; and (2) the impugned provisions off end against Art. 301 of the Constitution. As regards the Rules, it was generally said that they constitute unreasonable restrictions on the fundamental right guaranteed under Art. 19(1) (g) of the Constitution. None of these contentions can prevail. 37. It is to be observed that restriction imposed by s. 12A of the Act as to the quantity of medicinal preparations to be manufactured relates not only to such preparations to which alcohol is added, but also to medicinal preparation s in which alcohol is self-generated. There can be no doubt that ayurvedic asavas and aristhas which are capable of being misused as alcoholic beverages can come within the purview of the definition of liquor contained in s. 3(10) of the Ac t being of the Spirituous Preparations (Control) Rules, 1969 liquids containing alcohol The contention that Note to r. 3(1) is an unreasonable restriction on the freedom of trade guaranteed under Art. 19(1) (g) of the Constitution has no substance. It provides that unless otherwise declared by the Expert Committee, asavas and aristas and other preparations containing alcohal are deemed to be spurious if their self-generated alcohol content exceeds 12% by volume. It is a matter of common knowledge that such preparations are always likely to be misused as a substitute for alcoholic beverages and, therefore, the restriction imposed by s. 12A is a reasonable restriction within the meaning of s 19(6) of the Constitution, 38. So far as the contention based on Art. 301 of the constitution is concerned, it is urged that there is demand for the petitioners medicinal preparations not only in the State, but throughout the country and to limit the quantity to be manufactured, taking into account the requirements of the State alone, is but an abridgment on the freedom of inter-State trade and commerce. In our opinion, s. 12A has no such effect. As already stated, the expression shall have regard to as interpreted by the Judicial Committee in the Ryots of Garobandhos case (supra), means shall take into consideration. All that the provision enjoins is that the Commissioner shall have regard to the total requirements for consumption and use in th e State, while fixing the quantity of the medicinal preparations to be manufactured. Furthermore, the challenge with regard to Art. 301 does not arise as, admittedly, the Bill was reserved for the assent of the President, and is, therefore, protected by Art. 304(b) of the Constitution. It is not disputed that the provisions are regulatory in nature and they impose reasonable restrictions on the freedom of trade. 39.
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0[ds]The supervisory staff which has to be paid for under r. 36 therefore is meant for the supervision of the manufacture of medicinal preparations and it is for that purpose only that expenses have to borne by the laboratory concerned. The purpose of the rule therefore is clearly covered by the Act an d the Rules framed thereunder and it cannot survive the Act and the rules in view of s. 21 of the Act and r 143 of the 1956-Rules, and the proviso to s 21 cannot be availed of by the State.While repelling the contention that r. 36 could still be good law as it was meant to carry out the general law relating to alcohol and intoxicating drugs, the Court pointed out that the Central Rules make no provision for recovery of supervisory charges, the intention being that the duty under the Act would cover all expenses for enforcing it and observed (1)We are of opinion that there is no force hl this contention either. In the first place, as we have already indicated, the main object of the supervisory staff mentioned in r. 36 is to supervise the manufacture of medicinal preparations. In that connection the supervisory staff will certainly see that the alcohol supplied is used for the purpose for which it is supplied and it is not used in any other manner. Rule 36 is only concerned with seeing that the manufacture of medicinal preparations is made properly and is done under the supervision of the establishment attached to each laboratory; and it is only incidentally that in that connection the establishment is also to see that the alcohol supplied is not used otherwise than for the purpose of manufactureIt is not disputed by the appellants that the impugned Act does not levy a duty of excise on medicinal and toilet preparations containing alcohol, but they contend that, whatever be the intention, the State Legislature had, in fact, encroached upon an occupied field. The contention is, in our opinion, wholly misconceived. The main purpose of the impugned Act is to consolidate the law relating to manufacture, sale and possession of intoxicating liquor and intoxicating drugs which squarely falls under Entry 8, List II of the Seventh Schedule, while the main object of the Central Act is to provide for the levy and collection of duties of excise on medicinal and toilet preparations containing alcohol falling under Entry 84, List I of the Seventh Schedule. When the frame-work of the two enactments is examined, it would be apparent that the Central and the State Legislations operate in two different and distinct fields. In the matter of making rules or detailed provisions to achieve the object and purpose of a legislation, there may be some provisions seemingly overlapping or encroaching upon the forbidden field, but that does not warrant the striking down the impugned Act as ultra virus the State Legislature.The alternative contention that the impugned provisions are violative of Art. 19(1)(g) of the Constitution, is wholly devoid of any merit. No citizen ha s any fundamental right guaranteed under Art. 19(1)(g) of the Constitution to carry on trade in any noxious and dangerous goods like intoxicating drugs or intoxicating liquors. The power to legislate with regard to intoxicating liquor carries wi th it the power to regulate the manufacture, sale aud possession of medicinal and toilet preparations containing alcohol, not for the purpose of interfering with the right of citizens in the matter of consumption or use for bona fide medicinal and toilet preparations, but for preventing intoxicating liquors from being passed on under the guise of medicinal and toilet preparations. It was within the competence of the State Legislature to prevent the noxious use of such preparations, i.e. their use as a substitute for alcoholic beveragesThe general test for determining what medicinal preparations containing alcohol are capable of being misused and, therefore, must be considered intoxicating within the meaning of the term intoxicating liquor, is the capability of the article in question tor use as a beverage. The impugned provisions have been enacted to ensure that rectified spirit is not misused under the pretext of being used for medicinal and toilet preparation s containing alcohol. Such regulation is a necessary concomitant of the police power of the State to regulate such trade or business which is inherently dangerous to public healthIt is said that the essence of taxation is compulsion, that is to say, it is imposed under statutory power without the tax-payers consent and the payment is enforced by law. A The second characteristic of tax is that it is an imposition made for public purpose withou t reference to any special benefit to be conferred on the payer of the tax. This is expressed by saying that the levy of tax is for the purposes of general revenue, which when collected forms part of the public revenues of the State. As the object of a tax is not to confer any special benefit upon any particular individual, there is, as it is said, no element of quid pro quo between the tax payer and the public authority. Another feature of taxation is that as it is a part of the common burden, the quantum of imposition upon the tax payer depends gene rally upon his capacity to pay.Coming now to fees, a fee is generally defined to be a charge for a special service rendered to individuals by some Governmental agency. The amount of fee levied is supposed to be based on the expenses incurred by the Government in rendering the service, though in many cases the costs are arbitrarily assessed. Ordinarily, the fees are uniform and no account is taken of the varying abilities of different recipients to pay. These are undoubtedly some of the general characteristics, but as there may be various kinds of fees, it is not possible to formulate a definition that would be applicable to all casesTo our mind, these observations are not intended and meant as laying down a rule of universal application. The Court was considering the rate of a market fee, and the question was whether there was any justification for the increase in rate from Rs. 2/- per every hundred rupees to Rs. 31-. There was no material placed to justify the increase in rate of the fee and, therefore, it partook the nature of a tax. It seems that the Court proceeded on the assumption that the element of quid pro quo must always be present in a fee. The traditional concept of quid pro quo is undergoing at seems obvious that. in the case of a manufacturer of medicinal and toilet preparations containing alcohol in a bonded manufactory, the imposition of the cost of establishment under s. 14(e) of the Act calculated in accordance with the nature and extent of that establishment could not be said to be an imposition of a duty of excise, but is a price for his franchise to carry on the business. If an exaction is to be classed as a duty of excise, it must, of course, be a tax; its essential distinguishing feature is that it is a tax imposed "upon" or "in respect of or "in relation to" goods: Matthews v. Chickory Marketing Board (l). The exaction is in truth, as it purports to be, simply a fee payable as a con dition of a right to carry on a businessThere is admittedly no provision made in the Central Rules for the recover of supervisor charges, perhaps because as the Court Observed in the Hyderabad Chemicals and Pharmaceuticals case A (supra) it was felt that the duty on medicinal and toilet preparations containing alcohol would be sufficient to defray the cost of such supervision. But the absence of such a provision in the Central Rules, as we have already indicated, does not deprive the State from making a provision in that behalf. It is true that the supervisory charges are in the nature of a compulsory exaction from a licensee and the collections are not credited to a separate fund, but are taken to the consolidated fund of the State and are not separately appropriated towards the expenditure incurred in rendering the serviceIt is to be observed that restriction imposed by s. 12A of the Act as to the quantity of medicinal preparations to be manufactured relates not only to such preparations to which alcohol is added, but also to medicinal preparation s in which alcohol is self-generated. There can be no doubt that ayurvedic asavas and aristhas which are capable of being misused as alcoholic beverages can come within the purview of the definition of liquor contained in s. 3(10) of the Ac t being of the Spirituous Preparations (Control) Rules, 1969 liquids containing alcohol The contention that Note to r. 3(1) is an unreasonable restriction on the freedom of trade guaranteed under Art. 19(1) (g) of the Constitution has no substance. It provides that unless otherwise declared by the Expert Committee, asavas and aristas and other preparations containing alcohal are deemed to be spurious if their self-generated alcohol content exceeds 12% by volume. It is a matter of common knowledge that such preparations are always likely to be misused as a substitute for alcoholic beverages and, therefore, the restriction imposed by s. 12A is a reasonable restriction within the meaning of s 19(6) of theo far as thecontention based on Art. 301 of the constitution is concerned, it is urged that there is demand for the petitioners medicinal preparations not only in the State, but throughout the country and to limit the quantity to be manufactured, taking into account the requirements of the State alone, is but an abridgment on the freedom ofe trade and. In our opinion, s. 12A has no such effect. As already stated, the expression shall have regard to as interpreted by the Judicial Committee in the Ryots of Garobandhos case (supra), means shall take into consideration. All that the provision enjoins is that the Commissioner shall have regard to the total requirements for consumption and use in th e State, while fixing the quantity of the medicinal preparations to be manufactured. Furthermore, the challenge with regard to Art. 301 does not arise as, admittedly, the Bill was reserved for the assent of the President, and is, therefore, protected by Art. 304(b) of the Constitution. It is not disputed that the provisions are regulatory in nature and they impose reasonable restrictions on the freedom of trade.
| 0 | 10,968 | 1,927 |
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v. Zenith Lamp and chemicals Ltd. supra). The cost of supervisory charges can be sustained even if they are regarded as a fee for services rendered by the State or its instrumentalities. 34. The last ground on which the appellants took their stand is even less tenable. It is urged that r. 13 of the Kerala Rectified Spirit Rules, 1972, providing for the levy of excise duty on excess wastage of alcohol in the manufacture of medicinal and toilet preparations cannot be supported in terms of the charging provision contained in s. 17 of the Act. Rule 13 reads as follows:13(1) If the rectified spirit imported or purchased P under these rules is used for the manufacture of medicinal and toilet preparations which duty of excise is leviable under the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 (Centra l Act 16 of 1955), no duty shall be collected under the Abkari Act 1 of 1077 on so much quantity of alcohol, as is present in the finished product. (2) The assessment of duty under the Medicinal and Toilet Preparations Excise Duties) Act, 1955 (Central Act 16 of 1955) being applicable only to the quantity of spirit existing in the finished product, all spirit wasted during the course of manufacture of any medicinal or toilet preparation shall be assessable to duty under the Abkari Act, 1 of 1077. Provided that the Government may, in consultation with the Drugs Controller and the Chemical Examiner, by notification in the Gazette. permit such allowance a s they think fit for such wastages occurring during the manufacture. 35. No exception is taken to r. 13(1) which provides that no duty shall be collected under the Act on so much quantity of alcohol "as is present in the finished product ". The objection is to the validity of r. 13(2) in so far as it enables the levy of duty on excess wastage of alcohol. We find it difficult to appreciate the contention that r. 13(2) cannot be supported in terms of the charging provision in s. 17(f ). Rule 13(2) is nothing but a corollary of r. 13(1). On a combined reading of s. 17(f) and r. 8 read with the proviso thereof, no duty is chargeable on alcohol actually used in the manufacture of medicinal and toilet preparations. The Government fully realised that some margin for wastage should be allowed and, therefore inserted the proviso to r. 13(1). It provides that the Government may, in consultation with the Drugs Controller and the Chemical Examiner, by notification in the Gazette, permit such allowance as they think fit for such wastages occurring during the manufacture. Beyond the permissible limit, the State has the right to levy a duty on excess wastage of alcohol, i.e. On alcohol not accounted for. 36. In the connected Special Leave Petition, the petitioner, P. Krishna Wariyar, Managing Trustee, Arya Vaidyasala, Kottakkal, who is engaged in the business of manufacture for sale of ayurvedic medicinal preparations, challenges the validity of ss. 12A, 56A and 68A of the Act and rr. 5, 6 and 7 of the Kerala Spirituous Preparations Rules. 1969. Apart from the question of legislative competence, two other grounds were raised: (1) the power to restrict the quantity of medicinal preparations to be manufactured, by the Commissioner under s. 12 cannot be exercised in relation to ayurvedic preparations as alcohol is self-generated in the process of manufacture; and (2) the impugned provisions off end against Art. 301 of the Constitution. As regards the Rules, it was generally said that they constitute unreasonable restrictions on the fundamental right guaranteed under Art. 19(1) (g) of the Constitution. None of these contentions can prevail. 37. It is to be observed that restriction imposed by s. 12A of the Act as to the quantity of medicinal preparations to be manufactured relates not only to such preparations to which alcohol is added, but also to medicinal preparation s in which alcohol is self-generated. There can be no doubt that ayurvedic asavas and aristhas which are capable of being misused as alcoholic beverages can come within the purview of the definition of liquor contained in s. 3(10) of the Ac t being of the Spirituous Preparations (Control) Rules, 1969 liquids containing alcohol The contention that Note to r. 3(1) is an unreasonable restriction on the freedom of trade guaranteed under Art. 19(1) (g) of the Constitution has no substance. It provides that unless otherwise declared by the Expert Committee, asavas and aristas and other preparations containing alcohal are deemed to be spurious if their self-generated alcohol content exceeds 12% by volume. It is a matter of common knowledge that such preparations are always likely to be misused as a substitute for alcoholic beverages and, therefore, the restriction imposed by s. 12A is a reasonable restriction within the meaning of s 19(6) of the Constitution, 38. So far as the contention based on Art. 301 of the constitution is concerned, it is urged that there is demand for the petitioners medicinal preparations not only in the State, but throughout the country and to limit the quantity to be manufactured, taking into account the requirements of the State alone, is but an abridgment on the freedom of inter-State trade and commerce. In our opinion, s. 12A has no such effect. As already stated, the expression shall have regard to as interpreted by the Judicial Committee in the Ryots of Garobandhos case (supra), means shall take into consideration. All that the provision enjoins is that the Commissioner shall have regard to the total requirements for consumption and use in th e State, while fixing the quantity of the medicinal preparations to be manufactured. Furthermore, the challenge with regard to Art. 301 does not arise as, admittedly, the Bill was reserved for the assent of the President, and is, therefore, protected by Art. 304(b) of the Constitution. It is not disputed that the provisions are regulatory in nature and they impose reasonable restrictions on the freedom of trade. 39.
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consent and the payment is enforced by law. A The second characteristic of tax is that it is an imposition made for public purpose withou t reference to any special benefit to be conferred on the payer of the tax. This is expressed by saying that the levy of tax is for the purposes of general revenue, which when collected forms part of the public revenues of the State. As the object of a tax is not to confer any special benefit upon any particular individual, there is, as it is said, no element of quid pro quo between the tax payer and the public authority. Another feature of taxation is that as it is a part of the common burden, the quantum of imposition upon the tax payer depends gene rally upon his capacity to pay.Coming now to fees, a fee is generally defined to be a charge for a special service rendered to individuals by some Governmental agency. The amount of fee levied is supposed to be based on the expenses incurred by the Government in rendering the service, though in many cases the costs are arbitrarily assessed. Ordinarily, the fees are uniform and no account is taken of the varying abilities of different recipients to pay. These are undoubtedly some of the general characteristics, but as there may be various kinds of fees, it is not possible to formulate a definition that would be applicable to all casesTo our mind, these observations are not intended and meant as laying down a rule of universal application. The Court was considering the rate of a market fee, and the question was whether there was any justification for the increase in rate from Rs. 2/- per every hundred rupees to Rs. 31-. There was no material placed to justify the increase in rate of the fee and, therefore, it partook the nature of a tax. It seems that the Court proceeded on the assumption that the element of quid pro quo must always be present in a fee. The traditional concept of quid pro quo is undergoing at seems obvious that. in the case of a manufacturer of medicinal and toilet preparations containing alcohol in a bonded manufactory, the imposition of the cost of establishment under s. 14(e) of the Act calculated in accordance with the nature and extent of that establishment could not be said to be an imposition of a duty of excise, but is a price for his franchise to carry on the business. If an exaction is to be classed as a duty of excise, it must, of course, be a tax; its essential distinguishing feature is that it is a tax imposed "upon" or "in respect of or "in relation to" goods: Matthews v. Chickory Marketing Board (l). The exaction is in truth, as it purports to be, simply a fee payable as a con dition of a right to carry on a businessThere is admittedly no provision made in the Central Rules for the recover of supervisor charges, perhaps because as the Court Observed in the Hyderabad Chemicals and Pharmaceuticals case A (supra) it was felt that the duty on medicinal and toilet preparations containing alcohol would be sufficient to defray the cost of such supervision. But the absence of such a provision in the Central Rules, as we have already indicated, does not deprive the State from making a provision in that behalf. It is true that the supervisory charges are in the nature of a compulsory exaction from a licensee and the collections are not credited to a separate fund, but are taken to the consolidated fund of the State and are not separately appropriated towards the expenditure incurred in rendering the serviceIt is to be observed that restriction imposed by s. 12A of the Act as to the quantity of medicinal preparations to be manufactured relates not only to such preparations to which alcohol is added, but also to medicinal preparation s in which alcohol is self-generated. There can be no doubt that ayurvedic asavas and aristhas which are capable of being misused as alcoholic beverages can come within the purview of the definition of liquor contained in s. 3(10) of the Ac t being of the Spirituous Preparations (Control) Rules, 1969 liquids containing alcohol The contention that Note to r. 3(1) is an unreasonable restriction on the freedom of trade guaranteed under Art. 19(1) (g) of the Constitution has no substance. It provides that unless otherwise declared by the Expert Committee, asavas and aristas and other preparations containing alcohal are deemed to be spurious if their self-generated alcohol content exceeds 12% by volume. It is a matter of common knowledge that such preparations are always likely to be misused as a substitute for alcoholic beverages and, therefore, the restriction imposed by s. 12A is a reasonable restriction within the meaning of s 19(6) of theo far as thecontention based on Art. 301 of the constitution is concerned, it is urged that there is demand for the petitioners medicinal preparations not only in the State, but throughout the country and to limit the quantity to be manufactured, taking into account the requirements of the State alone, is but an abridgment on the freedom ofe trade and. In our opinion, s. 12A has no such effect. As already stated, the expression shall have regard to as interpreted by the Judicial Committee in the Ryots of Garobandhos case (supra), means shall take into consideration. All that the provision enjoins is that the Commissioner shall have regard to the total requirements for consumption and use in th e State, while fixing the quantity of the medicinal preparations to be manufactured. Furthermore, the challenge with regard to Art. 301 does not arise as, admittedly, the Bill was reserved for the assent of the President, and is, therefore, protected by Art. 304(b) of the Constitution. It is not disputed that the provisions are regulatory in nature and they impose reasonable restrictions on the freedom of trade.
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Sardar Indra Singh And Sons Ltd Vs. Commissioner Of Income-Tax,West Bengal
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Patanjali Sastri, CJ.1. This is an appeal from a judgment of the High Court of Judicature at Calcutta answering a question referred to it by the Income-tax Appellate Tribunal under S. 66, Income-tax Act, 1922.2. The appellant is a private limited company incorporated in the year 1935 under the Indian Companies Act with the following objects, among others, set out in the memorandum of association :To carry on and undertake any business, transaction, operation or work commonly carried on or undertaken by bankers, capitalists, promoters, financiers, concessionaires, contractors, merchants, managers, managing agents, secretaries and treasurers.To purchase or otherwise acquire, and to sell .... . . . stock, share. . . . . . business concerns and undertakings.To invest and deal with the moneys of the company not immediately required for the companys business upon such securities and in such manner as may from time to time be determined.3. The company held a large number of shares in other incorporated companies and was realising some of its holdings and acquiring large blocks of shares in other companies. In the return for the assessment year 1938-39, the company showed a loss of Rs. 3,22,221 as a result of the sales of shares and securities during the previous year and this was allowed as a business loss in the computation of its profits. In the assessment for the years 1939-40, 1940-41 and 1941-42, however, the company claimed that the surplus resulting from similar sales during the corresponding account years was not taxable income as such surpluses resulted from a mere change of investments and was, therefore, a capital gain.The income-tax authorities rejected this claim and taxed the surplus in each of those years as the profits and gains of the companys business of dealing in shares. On appeal, the Income-tax Appellate Tribunal confirmed the assessment orders but on somewhat different grounds. After an elaborate analysis of such transactions from the commencement of the companys business, the Tribunal came to the following conclusion :From the foregoing particulars it is clear that the company has been financing and promoting the business of other companies. For this purpose, it had to vary its holdings from time to time ; quite a number of shares held by the company have been of a speculative character. To hold these investments and to finance several companies (managed or otherwise) the appellant company had to resort to obtaining loans and overdrafts. It is, therefore, clear that shares were acquired by the appellant company in the ordinary course of its business and they became its stock-in-trade- The profit on sale of these shares did not essentially arise out of the sale of investment of any surplus funds. It is, therefore, clear that the sale of investments and making of fresh investments are linked up with the business of the company as financiers inasmuch as investing and realising its holdings when finance were needed is part of the normal business of the company. . . . . . . There is ample evidence to show that the company did in fact carry on the business of financiers, which is one of the objects mentioned in cl. 3 (1) of the memorandum of association. The evidence pertaining to the financial transactions of the company, during the relevant accounting years, to which we have referred, clearly establishes that the realisation of profits on investment is directly referable to the carrying on of the companys business as financiers.4. In this view, the Tribunal considered it unnecessary to decide whether the profits are taxable as profits and gains of the company from the business of dealing in shares.5. On application by the company the Tribunal referred the following question to the High Court for its decision :On the facts and circumstances of the case, is the surplus realised by the company on the sales of shares and securities a taxable income?The court answered the question in the affirmative but gave leave to the Company to appeal to this Court.6. The principle applicable in all such cases is well settled and the question always is whether the sales which produced the surplus were so connected with the carrying on of the assessees business that it could fairly be said that the surplus is the profits and gains of such business. It is not necessary that the surplus should have resulted from such a course of dealing in securities as by itself would amount to the carrying on of a business of buying and selling securities. It would be enough if such sales were effected in the usual course of carrying on the business or, in the words used by the Privy Council in -Punjab Co-operative Bank Ltd. v. Income-tax Commissioner, Lahore, AIR 1940 PC 230 at P. 235 (A), if the realisation of securities is a normal step m carrying on the assessees business.Though that case arose out of the assessment of a banking business, the test is one of general application in determining whether the surplus arising out of such transactions is a capital receipt or a trading profit. The question is primarily one of fact and there are numerous cases fulling on either side of the line but illustrating the same principle. On the facts found in regard to the nature and course of the companys business, there can be no doubt that the present case falls on the Revenues side of the line.7. Agreeing with the High Court that there was ample material upon which the Appellate Tribunal could arrive at the conclusion which they did,
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0[ds]6. The principle applicable in all such cases is well settled and the question always is whether the sales which produced the surplus were so connected with the carrying on of the assessees business that it could fairly be said that the surplus is the profits and gains of such business. It is not necessary that the surplus should have resulted from such a course of dealing in securities as by itself would amount to the carrying on of a business of buying and selling securities. It would be enough if such sales were effected in the usual course of carrying on the business or, in the words used by the Privy Council in -Punjab Co-operative Bank Ltd. v. Income-tax Commissioner, Lahore, AIR 1940 PC 230 at P. 235 (A), if the realisation of securities is a normal step m carrying on the assessees business.Though that case arose out of the assessment of a banking business, the test is one of general application in determining whether the surplus arising out of such transactions is a capital receipt or a trading profit. The question is primarily one of fact and there are numerous cases fulling on either side of the line but illustrating the same principle. On the facts found in regard to the nature and course of the companys business, there can be no doubt that the present case falls on the Revenues side of the line.7. Agreeing with the High Court that there was ample material upon which the Appellate Tribunal could arrive at the conclusion which they did,
| 0 | 1,001 | 279 |
### 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:
Patanjali Sastri, CJ.1. This is an appeal from a judgment of the High Court of Judicature at Calcutta answering a question referred to it by the Income-tax Appellate Tribunal under S. 66, Income-tax Act, 1922.2. The appellant is a private limited company incorporated in the year 1935 under the Indian Companies Act with the following objects, among others, set out in the memorandum of association :To carry on and undertake any business, transaction, operation or work commonly carried on or undertaken by bankers, capitalists, promoters, financiers, concessionaires, contractors, merchants, managers, managing agents, secretaries and treasurers.To purchase or otherwise acquire, and to sell .... . . . stock, share. . . . . . business concerns and undertakings.To invest and deal with the moneys of the company not immediately required for the companys business upon such securities and in such manner as may from time to time be determined.3. The company held a large number of shares in other incorporated companies and was realising some of its holdings and acquiring large blocks of shares in other companies. In the return for the assessment year 1938-39, the company showed a loss of Rs. 3,22,221 as a result of the sales of shares and securities during the previous year and this was allowed as a business loss in the computation of its profits. In the assessment for the years 1939-40, 1940-41 and 1941-42, however, the company claimed that the surplus resulting from similar sales during the corresponding account years was not taxable income as such surpluses resulted from a mere change of investments and was, therefore, a capital gain.The income-tax authorities rejected this claim and taxed the surplus in each of those years as the profits and gains of the companys business of dealing in shares. On appeal, the Income-tax Appellate Tribunal confirmed the assessment orders but on somewhat different grounds. After an elaborate analysis of such transactions from the commencement of the companys business, the Tribunal came to the following conclusion :From the foregoing particulars it is clear that the company has been financing and promoting the business of other companies. For this purpose, it had to vary its holdings from time to time ; quite a number of shares held by the company have been of a speculative character. To hold these investments and to finance several companies (managed or otherwise) the appellant company had to resort to obtaining loans and overdrafts. It is, therefore, clear that shares were acquired by the appellant company in the ordinary course of its business and they became its stock-in-trade- The profit on sale of these shares did not essentially arise out of the sale of investment of any surplus funds. It is, therefore, clear that the sale of investments and making of fresh investments are linked up with the business of the company as financiers inasmuch as investing and realising its holdings when finance were needed is part of the normal business of the company. . . . . . . There is ample evidence to show that the company did in fact carry on the business of financiers, which is one of the objects mentioned in cl. 3 (1) of the memorandum of association. The evidence pertaining to the financial transactions of the company, during the relevant accounting years, to which we have referred, clearly establishes that the realisation of profits on investment is directly referable to the carrying on of the companys business as financiers.4. In this view, the Tribunal considered it unnecessary to decide whether the profits are taxable as profits and gains of the company from the business of dealing in shares.5. On application by the company the Tribunal referred the following question to the High Court for its decision :On the facts and circumstances of the case, is the surplus realised by the company on the sales of shares and securities a taxable income?The court answered the question in the affirmative but gave leave to the Company to appeal to this Court.6. The principle applicable in all such cases is well settled and the question always is whether the sales which produced the surplus were so connected with the carrying on of the assessees business that it could fairly be said that the surplus is the profits and gains of such business. It is not necessary that the surplus should have resulted from such a course of dealing in securities as by itself would amount to the carrying on of a business of buying and selling securities. It would be enough if such sales were effected in the usual course of carrying on the business or, in the words used by the Privy Council in -Punjab Co-operative Bank Ltd. v. Income-tax Commissioner, Lahore, AIR 1940 PC 230 at P. 235 (A), if the realisation of securities is a normal step m carrying on the assessees business.Though that case arose out of the assessment of a banking business, the test is one of general application in determining whether the surplus arising out of such transactions is a capital receipt or a trading profit. The question is primarily one of fact and there are numerous cases fulling on either side of the line but illustrating the same principle. On the facts found in regard to the nature and course of the companys business, there can be no doubt that the present case falls on the Revenues side of the line.7. Agreeing with the High Court that there was ample material upon which the Appellate Tribunal could arrive at the conclusion which they did,
### Response:
0
### Explanation:
6. The principle applicable in all such cases is well settled and the question always is whether the sales which produced the surplus were so connected with the carrying on of the assessees business that it could fairly be said that the surplus is the profits and gains of such business. It is not necessary that the surplus should have resulted from such a course of dealing in securities as by itself would amount to the carrying on of a business of buying and selling securities. It would be enough if such sales were effected in the usual course of carrying on the business or, in the words used by the Privy Council in -Punjab Co-operative Bank Ltd. v. Income-tax Commissioner, Lahore, AIR 1940 PC 230 at P. 235 (A), if the realisation of securities is a normal step m carrying on the assessees business.Though that case arose out of the assessment of a banking business, the test is one of general application in determining whether the surplus arising out of such transactions is a capital receipt or a trading profit. The question is primarily one of fact and there are numerous cases fulling on either side of the line but illustrating the same principle. On the facts found in regard to the nature and course of the companys business, there can be no doubt that the present case falls on the Revenues side of the line.7. Agreeing with the High Court that there was ample material upon which the Appellate Tribunal could arrive at the conclusion which they did,
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Workmen Rastriya Colliery Mazdoor Sangh Vs. Bharat Coking Coal Ltd.
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the extent that as and when M/s. B.C.C.L. intends to employ regular workmen, it shall give preference to these 88 plus 20 persons, if they are otherwise found suitable by relaxing the conditions as to the works age appropriately taking into consideration their age at the time of their initial appointment and also by relaxing the condition regarding academic/technical qualification". No appeal was filed against the impugned judgment of the High Court dated 18 May 2004 by the Union. However, on 22 August 2011 a representation was submitted on behalf of the workmen to the management seeking employment for those governed by the Award dated 9 September 1996, as modified by the High Court on 18 May 2004. Eventually, a writ petition was filed before the High Court under Article 226 seeking a direction to the employer to furnish employment to 20 workmen in terms of the order of the High Court dated 18 May 2004. The writ petition was dismissed by learned Single Judge on 21 March 2012 on the ground that execution of the Award of the Industrial Tribunal could not be sought by invoking the jurisdiction under Article 226. In a Letters Patent Appeal, the Division Bench by a judgment dated 16 July 2012 affirmed the view of the learned Single Judge. The present proceedings have been instituted to challenge the judgment of the Division Bench dated 16 July 2012. 4. During the pendency of these proceedings an effort was made to secure an amicable resolution of the dispute, which was unsuccessful. By an order dated 28 August 2015 the management was directed to dispose of the representation submitted on behalf of the workmen on 22 August 2011. Accordingly, a reasoned order was issued on 16 September 2015 by the Project Officer. The order notes that after the Award of the Industrial Tribunal was modified by the learned Single Judge on 18 May 2004, the workmen initiated a second round of litigation only in 2011 by filing a representation on 22 August 2011 and thereafter instituting writ proceedings. The order rejecting the representation notes that the workmen had worked in 1987-1989 with a dummy contractor and nearly 26 years had elapsed since then. BCCL, it has been stated, was until recently a sick company under the BIFR and had not initiated any regular process of recruitment after the order of the learned Single Judge dated 18 May 2004. However, it has been noted that the management would make a sincere endeavour to grant preference to the 14 workmen in case any fresh recruitment is made subject to age and physical requirements being met. 5. Leave was granted in these proceedings on 27 November 2015. 6. The narration of facts indicates that the Award of the Industrial Tribunal dated 9 September 1996 directed the management of BCCL to regularise the workmen, but without backwages. The Award was, however, modified by the High Court on 18 May 2004. As a result, the management was only required in case it intended to employ regular workmen, to give preference to the workmen in question by relaxing conditions as to age and eligibility. The order of the High Court was not challenged by the Union representing the workmen. Evidently, no challenge was raised to the modification of the Award by the High Court unlike in the case of Reference 204 of 1994. In that case, the Award of the Industrial Tribunal was modified by a Division Bench of the High Court in a Letters Patent Appeal on 10 March 2003. The judgment of the Division Bench was challenged before this Court by the Union as a result of which, by a final judgment and order dated 18 November 2009, the Award of the Industrial Tribunal was restored and reinstatement was ordered without backwages. In the present case, however, the fact remains that the order of the High Court dated 18 May 2004 was never challenged. 7. The basic grievance of the workmen is that as a result of the position which has ensued, the workmen governed by the present proceedings of whom only 14 are left in the fray, are virtually without any relief or remedy in practical terms. The workmen were engaged between 1987 and 1989. Nearly 27 years have elapsed since then. Many of the 14 workmen would be on the verge of attaining the age of retirement. There is no occasion at present to grant them reinstatement since in any event, such relief has been denied in the judgment of the High Court dated 18 May 2004 which has not been challenged. However, the predicament of the workmen is real. Two sets of workmen in the same colliery under the same company have received unequal treatment. The present group of workmen has faced attrition in numbers and has been left with no practical relief. This situation should be remedied, to the extent that is now permissible in law, having regard to the above background. In order to render full, final and complete justice, we are of the view that an order for the payment of compensation in final settlement of all the claims, dues and outstandings payable to the 14 workmen in question would meet the ends of justice. 8. We accordingly direct that the Respondents shall deposit with the Central Government Tribunal (No.2) at Dhanbad an amount of L Two lakhs each towards compensation payable to each one of the 14 workmen. This amount shall be in full and final satisfaction of all the claims, demands and outstandings. Upon deposit of the amount, the Award of the Industrial Tribunal dated 9 September 1996, as modified by the High Court on 18 May 2004 shall be marked as satisfied. The Respondents shall deposit the amount as directed hereinabove, within a period of two months from today before the Central Government Industrial Tribunal (No.2) Dhanbad in Reference 26 of 1993. The amount shall be disbursed to the workmen concerned subject to due verification of identity by the Industrial Tribunal. 9.
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1[ds]The narration of facts indicates that the Award of the Industrial Tribunal dated 9 September 1996 directed the management of BCCL to regularise the workmen, but without backwages. The Award was, however, modified by the High Court on 18 May 2004. As a result, the management was only required in case it intended to employ regular workmen, to give preference to the workmen in question by relaxing conditions as to age and eligibility. The order of the High Court was not challenged by the Union representing the workmen. Evidently, no challenge was raised to the modification of the Award by the High Court unlike in the case of Reference 204 of 1994. In that case, the Award of the Industrial Tribunal was modified by a Division Bench of the High Court in a Letters Patent Appeal on 10 March 2003. The judgment of the Division Bench was challenged before this Court by the Union as a result of which, by a final judgment and order dated 18 November 2009, the Award of the Industrial Tribunal was restored and reinstatement was ordered without backwages. In the present case, however, the fact remains that the order of the High Court dated 18 May 2004 was neverbasic grievance of the workmen is that as a result of the position which has ensued, the workmen governed by the present proceedings of whom only 14 are left in the fray, are virtually without any relief or remedy in practical terms. The workmen were engaged between 1987 and 1989. Nearly 27 years have elapsed since then. Many of the 14 workmen would be on the verge of attaining the age of retirement. There is no occasion at present to grant them reinstatement since in any event, such relief has been denied in the judgment of the High Court dated 18 May 2004 which has not been challenged. However, the predicament of the workmen is real. Two sets of workmen in the same colliery under the same company have received unequal treatment. The present group of workmen has faced attrition in numbers and has been left with no practical relief. This situation should be remedied, to the extent that is now permissible in law, having regard to the above background. In order to render full, final and complete justice, we are of the view that an order for the payment of compensation in final settlement of all the claims, dues and outstandings payable to the 14 workmen in question would meet the ends ofaccordingly direct that the Respondents shall deposit with the Central Government Tribunal (No.2) at Dhanbad an amount of L Two lakhs each towards compensation payable to each one of the 14 workmen. This amount shall be in full and final satisfaction of all the claims, demands and outstandings. Upon deposit of the amount, the Award of the Industrial Tribunal dated 9 September 1996, as modified by the High Court on 18 May 2004 shall be marked as satisfied. The Respondents shall deposit the amount as directed hereinabove, within a period of two months from today before the Central Government Industrial Tribunal (No.2) Dhanbad in Reference 26 of 1993. The amount shall be disbursed to the workmen concerned subject to due verification of identity by the Industrial Tribunal.
| 1 | 1,651 | 596 |
### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
the extent that as and when M/s. B.C.C.L. intends to employ regular workmen, it shall give preference to these 88 plus 20 persons, if they are otherwise found suitable by relaxing the conditions as to the works age appropriately taking into consideration their age at the time of their initial appointment and also by relaxing the condition regarding academic/technical qualification". No appeal was filed against the impugned judgment of the High Court dated 18 May 2004 by the Union. However, on 22 August 2011 a representation was submitted on behalf of the workmen to the management seeking employment for those governed by the Award dated 9 September 1996, as modified by the High Court on 18 May 2004. Eventually, a writ petition was filed before the High Court under Article 226 seeking a direction to the employer to furnish employment to 20 workmen in terms of the order of the High Court dated 18 May 2004. The writ petition was dismissed by learned Single Judge on 21 March 2012 on the ground that execution of the Award of the Industrial Tribunal could not be sought by invoking the jurisdiction under Article 226. In a Letters Patent Appeal, the Division Bench by a judgment dated 16 July 2012 affirmed the view of the learned Single Judge. The present proceedings have been instituted to challenge the judgment of the Division Bench dated 16 July 2012. 4. During the pendency of these proceedings an effort was made to secure an amicable resolution of the dispute, which was unsuccessful. By an order dated 28 August 2015 the management was directed to dispose of the representation submitted on behalf of the workmen on 22 August 2011. Accordingly, a reasoned order was issued on 16 September 2015 by the Project Officer. The order notes that after the Award of the Industrial Tribunal was modified by the learned Single Judge on 18 May 2004, the workmen initiated a second round of litigation only in 2011 by filing a representation on 22 August 2011 and thereafter instituting writ proceedings. The order rejecting the representation notes that the workmen had worked in 1987-1989 with a dummy contractor and nearly 26 years had elapsed since then. BCCL, it has been stated, was until recently a sick company under the BIFR and had not initiated any regular process of recruitment after the order of the learned Single Judge dated 18 May 2004. However, it has been noted that the management would make a sincere endeavour to grant preference to the 14 workmen in case any fresh recruitment is made subject to age and physical requirements being met. 5. Leave was granted in these proceedings on 27 November 2015. 6. The narration of facts indicates that the Award of the Industrial Tribunal dated 9 September 1996 directed the management of BCCL to regularise the workmen, but without backwages. The Award was, however, modified by the High Court on 18 May 2004. As a result, the management was only required in case it intended to employ regular workmen, to give preference to the workmen in question by relaxing conditions as to age and eligibility. The order of the High Court was not challenged by the Union representing the workmen. Evidently, no challenge was raised to the modification of the Award by the High Court unlike in the case of Reference 204 of 1994. In that case, the Award of the Industrial Tribunal was modified by a Division Bench of the High Court in a Letters Patent Appeal on 10 March 2003. The judgment of the Division Bench was challenged before this Court by the Union as a result of which, by a final judgment and order dated 18 November 2009, the Award of the Industrial Tribunal was restored and reinstatement was ordered without backwages. In the present case, however, the fact remains that the order of the High Court dated 18 May 2004 was never challenged. 7. The basic grievance of the workmen is that as a result of the position which has ensued, the workmen governed by the present proceedings of whom only 14 are left in the fray, are virtually without any relief or remedy in practical terms. The workmen were engaged between 1987 and 1989. Nearly 27 years have elapsed since then. Many of the 14 workmen would be on the verge of attaining the age of retirement. There is no occasion at present to grant them reinstatement since in any event, such relief has been denied in the judgment of the High Court dated 18 May 2004 which has not been challenged. However, the predicament of the workmen is real. Two sets of workmen in the same colliery under the same company have received unequal treatment. The present group of workmen has faced attrition in numbers and has been left with no practical relief. This situation should be remedied, to the extent that is now permissible in law, having regard to the above background. In order to render full, final and complete justice, we are of the view that an order for the payment of compensation in final settlement of all the claims, dues and outstandings payable to the 14 workmen in question would meet the ends of justice. 8. We accordingly direct that the Respondents shall deposit with the Central Government Tribunal (No.2) at Dhanbad an amount of L Two lakhs each towards compensation payable to each one of the 14 workmen. This amount shall be in full and final satisfaction of all the claims, demands and outstandings. Upon deposit of the amount, the Award of the Industrial Tribunal dated 9 September 1996, as modified by the High Court on 18 May 2004 shall be marked as satisfied. The Respondents shall deposit the amount as directed hereinabove, within a period of two months from today before the Central Government Industrial Tribunal (No.2) Dhanbad in Reference 26 of 1993. The amount shall be disbursed to the workmen concerned subject to due verification of identity by the Industrial Tribunal. 9.
### Response:
1
### Explanation:
The narration of facts indicates that the Award of the Industrial Tribunal dated 9 September 1996 directed the management of BCCL to regularise the workmen, but without backwages. The Award was, however, modified by the High Court on 18 May 2004. As a result, the management was only required in case it intended to employ regular workmen, to give preference to the workmen in question by relaxing conditions as to age and eligibility. The order of the High Court was not challenged by the Union representing the workmen. Evidently, no challenge was raised to the modification of the Award by the High Court unlike in the case of Reference 204 of 1994. In that case, the Award of the Industrial Tribunal was modified by a Division Bench of the High Court in a Letters Patent Appeal on 10 March 2003. The judgment of the Division Bench was challenged before this Court by the Union as a result of which, by a final judgment and order dated 18 November 2009, the Award of the Industrial Tribunal was restored and reinstatement was ordered without backwages. In the present case, however, the fact remains that the order of the High Court dated 18 May 2004 was neverbasic grievance of the workmen is that as a result of the position which has ensued, the workmen governed by the present proceedings of whom only 14 are left in the fray, are virtually without any relief or remedy in practical terms. The workmen were engaged between 1987 and 1989. Nearly 27 years have elapsed since then. Many of the 14 workmen would be on the verge of attaining the age of retirement. There is no occasion at present to grant them reinstatement since in any event, such relief has been denied in the judgment of the High Court dated 18 May 2004 which has not been challenged. However, the predicament of the workmen is real. Two sets of workmen in the same colliery under the same company have received unequal treatment. The present group of workmen has faced attrition in numbers and has been left with no practical relief. This situation should be remedied, to the extent that is now permissible in law, having regard to the above background. In order to render full, final and complete justice, we are of the view that an order for the payment of compensation in final settlement of all the claims, dues and outstandings payable to the 14 workmen in question would meet the ends ofaccordingly direct that the Respondents shall deposit with the Central Government Tribunal (No.2) at Dhanbad an amount of L Two lakhs each towards compensation payable to each one of the 14 workmen. This amount shall be in full and final satisfaction of all the claims, demands and outstandings. Upon deposit of the amount, the Award of the Industrial Tribunal dated 9 September 1996, as modified by the High Court on 18 May 2004 shall be marked as satisfied. The Respondents shall deposit the amount as directed hereinabove, within a period of two months from today before the Central Government Industrial Tribunal (No.2) Dhanbad in Reference 26 of 1993. The amount shall be disbursed to the workmen concerned subject to due verification of identity by the Industrial Tribunal.
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WAZIR Vs. THE STATE OF HARYANA
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as the basis and then try to arrive at the appropriate value for the present acquisition. For this purpose, we may have to determine the rate of increase as shown by the sale deeds on record. The acquisition in Pran Sukh (2010) 11 SCC 175 was of the year 1994 and the award of rate therein corresponds with the rate available on record through Exh.P6. We have two instances of Exh.P8 and P4, which may indicate the rise in values. However in both instances, the lands were very small plots i.e. of an extent of less than half an acre. If the prices are to be compared in real terms, the values representing in two sale deeds Exh.P4 and P8 must be re-worked after effecting appropriate deduction. Normally the deductions can range from 20% upwards. We may however take the lowest of the quotient namely 20%. On that basis, over a period of two years i.e. between Pran Sukh (2010) 11 SCC 175 and Exh.P8 there would be no difference at all and the values would show the same rate. If the rate available from Exh.P4 is subjected to deduction of 20%, the corresponding value for a larger extent of land would be Rs.38.93 lakhs per acre. The difference between this value and the base value awarded in Pran Sukh (2010) 11 SCC 175 would then show the rise over a period of 7 years. In other words, the price of Rs.20.00 lakhs rose by Rs.18.93 lakhs in seven years that is to say it rose by 94.65% giving us an annual average of 13.52%. This rate represents pure increase on non-cumulative basis. If we adopt the rate, the base price as awarded in Pran Sukh (2010) 11 SCC 175 would have risen to the level of Rs.36.22 lakhs per acre. We may call this Method no.2. 25. The instances representing Exh. P1, P2 & P3 as well as P6, as a matter of fact do not show any increase at all as against the base rate as awarded in Pran Sukh (2010) 11 SCC 175 and the rise in Exh.P4 & P8 is also not substantial. Going by the law laid down by this Court on ONGC Ltd. (supra) in our considered view, the cumulative increase of 8% over the base rate as available in Pran Sukh (2010) 11 SCC 175 would give us the correct picture as to the rise in values in the area comprising of villages Naharpur Kasan and Kasan. The tabulated chart in that regard would be as under: chart 26. If the figures arrived at through these three methods are compared, the values of Rs.37.54 lakhs per acre under Method no.1, Rs.36.22 lakhs under Method no.2 and Rs.37.01 lakhs under Method no.3 are quite comparable. If the highest of these three figures is taken, the appropriate value for the lands in Naharpur Kasan and Kasan would be Rs.37.54 lakhs per acre in the year 2002. 27. The values in other three villages namely Bas Kusla, Bas Haria and Dhana have not shown any such increase. Apart from Exh.P1, P2 and P3, nothing has been placed on record, insofar as said villages are concerned. As stated herein above, even for these villages we may adopt the base rate of Rs.20.00 lakhs for the year 1994 and then consider the appropriate increase. As the sale deeds dated Exh. P1, P2 and P3 in respect of lands coming from these villages have not shown any increase at all, by way of rough and ready method we may adopt half the rise as shown in the lands coming from villages Naharpur Kasan and Kasan. Half the difference between Rs.20.00 lakhs as the base rate and Rs.37.54 lakhs adopted for the villages of Naharpur Kasan, Kasan and Manewsar would mean difference of Rs.8.77 lakhs over the base figure of Rs.20.00 lakhs as awarded in Pran Sukh (2010) 11 SCC 175. Thus, in our considered view, the market value of lands from villages Bas Kusla, Bas Haria and Dhana in 2002 must be at Rs.28.77 lakhs per acre. 28. In respect of lands coming from village Manesar, the High Court had granted 50% rise over and above the market value in respect of villages Naharpur Kasan and Kasan. The increase to that extent was well justified as the lands in village Manesar are abutting National Highway No.8 with excellent commercial potential. The grant of 50% rise is not seriously objected by the State and as such we confirm the same. Thus 50% rise over the figures as applicable to villages Naharpur Kasan and Kasan would lead us to the market value in respect of village Manesar which would be Rs.56.31 lakhs per acre. 29. We, however, find it difficult to accept grant of further 30% as severance charges to M/s. Kohli Holdings Private Limited. Normally the additional component of compensation in terms of Section 23(1)(thirdly) of the Act is granted when, a landholder suffers damage as a result of acquisition to the extent that the holding that he is left with stands comparatively diminished in terms of quality and value. For instance, if a railway track is to be built through an agricultural land held by a person,leaving two different halves with him, it would be impossible for him to carry on agricultural operations at an optimum level. This would lead to reduction in the value of the halves that he is left with. On the other hand, in a case where part of the holding is acquired for which appropriate commercial value is awarded, the rest of the value of the land will not stand diminished in terms of commercial potential. On the other hand, the potential of the remainder of the land would also increase drastically as the development would be right in the neighbourhood, thus giving substantial benefit to the landholder. In our view, the High Court was not justified in granting further compensation of 30% to M/s. Kohli Holdings Private Limited on account of severance charges.
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1[ds]21. In the instant case, the sale deeds Exts.P1, P2 and P3 relied upon by the landholders pertained to lands from villages Bas Kusla and Dhana and were of the year 1997 that is after the acquisition was initiated in Pran Sukh. The maximum value per acre in these villages was Rs.8 lakhs per acre and that too with respect to smaller plots. The sale deeds Exts.P4, P6, P8 and PY however pertained to lands coming from villages Naharpur Kasan and Kasan. Ext.PY dated 28.04.2004 was much after the acquisition was initiated in the present case. Secondly, as found by the High Court in para 74 of its judgment, there was construction and CLU was also obtained in relation to land in Ext. PY . For these reasons the High Court had rightly ruled out said transaction. At the same time Ext.P4 was also after the acquisition in the present case was initiated and pertained to a small plot of land. Out of these four sale deeds, Ext.P8 is prior in point of time so far as the present acquisition is considered and was therefore rightly relied upon asthe most appropriate exemplar by the High Court. If the value in Ext.P8 is compared with the maximum value under Exts.P1, P2 and P3 there is a marked difference. This difference is again consistent with the valuation that was accepted by the Sub-Divisional Officer cum Land Acquisition Collector. Since major part of the land under acquisition that is more than ? rds is from villages Bas Kusla, Bas Haria and Dhana, one way of assessing the correct value of compensation is to treat these three villages on one side while other three villages on the other side.22. However, not only the Reference Court but the High Court on three different occasions had considered all these villages together and applied the same rate of compensation. The base rate was initially taken by the Reference Court to be Rs.15 lakhs in terms of the decision of the High Court in Pran Sukh and later to be Rs.20 lakhs as per the decision of this Court. The High court on all three occasions had based its assessment taking base rate in Pran Sukhbe the starting point. We must also note that in Pran Sukh, this Court had also applied uniform rate for the entirety of the extent of 1490 acres of land coming from four different villages. It would therefore be inappropriate at this stage to make a distinction between these two sets of villages for the purposes of base rate. But this point willcertainly be of relevance when we consider the ratio of escalation. The sale deeds Exts.P1, P2 and P3 indicate that even after the initiation of acquisition in Pran Sukhcase which was in 1994, the valuation of the lands was still at a lower level. On the other hand, the valuation in respect of Ext. P-8 has shown some increase.23. As regards lands in Naharpur Kasan and Kasan, Exh. PY dated 28.04.2004 having been ruled out of consideration, we are now left with 3 sale instances namely Exh. P4, P6 and P8. We may first consider pre- acquisition instances namely Exh. P6 & P8. Exh. P6 dated 16.09.1994 pertained to land having an extent of 12 acres, a fairly large area, where the value was Rs.20.00 lakhs per acre. This value is equal to the one which was granted by this Court in the case of Pran Sukhfor the acquisition of 1994. The next sale deed namely Exh.P8 dated 29.09.1996 pertained to very small piece of land which was less than ½ acre and the value was in the region of 25.00 lakhs per acre. Without effecting any deduction on account of smallness of the plot and considering the values as they stand, it shows an increase of 25% over a period of two years, i.e. to say @ 12.5% per annum. This is one indication as to the nature of increase in price after 1994.We have another sale instance namely Exh. P4 dated 18.08.2003 which was after a year and half from the dates of Notifications issued under Section 4 in the present matter. If the very same rate of increase, though this Court in the decision in ONGC Ltd. (supra) had ruled that while deducting from a post-acquisition instance and working backwards the rate of deduction ought to be higher, is adopted in the present matter, 18.75% will have to be deducted from the price which was prevalent in August 2003 to arrive at the corresponding value for the period when the present acquisition was initiated. The rate of Rs.48.366 lakhs per acre, as available from Exh.P4, again without effecting any deductions for the smallness of the plot, must for the purposes of calculation suffer a deduction of Rs.9.12 lakhs @ 18.75%. We thus arrive at a figure of Rs.37.54 lakhs as the prevalent price in the year 2002. This price is arrived at first by considering the rate of deduction which the value representing the sale instance of August 2003 must suffer and secondly after effecting appropriate deduction, arrive at the appropriate value for the present purposes. We may call this Method no.1.24. We now consider the matter from a different perspective and take the rate awarded in Pran Sukhthe basis and then try to arrive at the appropriate value for the present acquisition. For this purpose, we may haveto determine the rate of increase as shown by the sale deeds on record. The acquisition in Pran Sukhof the year 1994 and the award of rate therein corresponds with the rate available on record through Exh.P6. We have two instances of Exh.P8 and P4, which may indicate the rise in values. However in both instances, the lands were very small plots i.e. of an extent of less than half an acre. If the prices are to be compared in real terms, the values representing in two sale deeds Exh.P4 and P8 must be re-worked after effecting appropriate deduction. Normally the deductions can range from 20% upwards. We may however take the lowest of the quotient namely 20%. On that basis, over a period of two years i.e. between Pran SukhExh.P8 there would be no difference at all and the values would show the same rate. If the rate available from Exh.P4 is subjected to deduction of 20%, the corresponding value for a larger extent of land would be Rs.38.93 lakhs per acre. The difference between this value and the base value awarded in Pran Sukhwould then show the rise over a period of 7 years. In other words, the price of Rs.20.00 lakhs rose by Rs.18.93 lakhs in seven years that is to say it rose by 94.65% giving us an annual average of 13.52%. This rate represents pure increase on non-cumulative basis. If weadopt the rate, the base price as awarded in Pran Sukhwould have risen to the level of Rs.36.22 lakhs per acre. We may call this Method no.2.25. The instances representing Exh. P1, P2 & P3 as well as P6, as a matter of fact do not show any increase at all as against the base rate as awarded in Pran Sukhrise in Exh.P4 & P8 is also not substantial. Going by the law laid down by this Court on ONGC Ltd. (supra) in our considered view, the cumulative increase of 8% over the base rate as available in Pran Sukhwould give us the correct picture as to the rise in values in the area comprising of villages Naharpur Kasan and Kasan.26. If the figures arrived at through these three methods are compared, the values of Rs.37.54 lakhs per acre under Method no.1, Rs.36.22 lakhs under Method no.2 and Rs.37.01 lakhs under Method no.3 are quite comparable. If the highest of these three figures is taken, the appropriate value for the lands in Naharpur Kasan and Kasan would be Rs.37.54 lakhs per acre in the year 2002.27. The values in other three villages namely Bas Kusla, Bas Haria and Dhana have not shown any such increase. Apart from Exh.P1, P2 and P3, nothing has been placed on record, insofar as said villages are concerned. As stated herein above, even for these villages we may adopt the base rate of Rs.20.00 lakhs for the year 1994 and then consider the appropriate increase. As the sale deeds dated Exh. P1, P2 and P3 in respect of lands coming from these villages have not shown any increase at all, by way of rough and ready method we may adopt half the rise as shown in the lands coming from villages Naharpur Kasan and Kasan. Half the difference between Rs.20.00 lakhs as the base rate and Rs.37.54 lakhs adopted for the villages of Naharpur Kasan, Kasan and Manewsar would mean difference of Rs.8.77 lakhs over the base figure of Rs.20.00 lakhs as awarded in Pran SukhThus, in our considered view, the market value of lands from villages Bas Kusla, Bas Haria and Dhana in 2002 must be at Rs.28.77 lakhs per acre.28. In respect of lands coming from village Manesar, the High Court had granted 50% rise over and above the market value in respect of villages Naharpur Kasan and Kasan. The increase to that extent was well justified as the lands in village Manesar are abutting National Highway No.8 with excellent commercial potential. The grant of 50% rise is not seriously objected by the State and as such we confirm the same. Thus 50% rise over the figures as applicable to villages Naharpur Kasan and Kasan would lead us to the market value in respect of village Manesar which would be Rs.56.31 lakhs per acre.29. We, however, find it difficult to accept grant of further 30% as severance charges to M/s. Kohli Holdings Private Limited. Normally the additional component of compensation in terms of Section 23(1)(thirdly) of the Act is granted when, a landholder suffers damage as a result of acquisition to the extent that the holding that he is left with stands comparatively diminished in terms of quality and value. For instance, if a railway track is to be built through an agricultural land held by a person,leaving two different halves with him, it would be impossible for him to carry on agricultural operations at an optimum level. This would lead to reduction in the value of the halves that he is left with. On the other hand, in a case where part of the holding is acquired for which appropriate commercial value is awarded, the rest of the value of the land will not stand diminished in terms of commercial potential. On the other hand, the potential of the remainder of the land would also increase drastically as the development would be right in the neighbourhood, thus giving substantial benefit to the landholder. In our view, the High Court was not justified in granting further compensation of 30% to M/s. Kohli Holdings Private Limited on account of severance charges.
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### 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 basis and then try to arrive at the appropriate value for the present acquisition. For this purpose, we may have to determine the rate of increase as shown by the sale deeds on record. The acquisition in Pran Sukh (2010) 11 SCC 175 was of the year 1994 and the award of rate therein corresponds with the rate available on record through Exh.P6. We have two instances of Exh.P8 and P4, which may indicate the rise in values. However in both instances, the lands were very small plots i.e. of an extent of less than half an acre. If the prices are to be compared in real terms, the values representing in two sale deeds Exh.P4 and P8 must be re-worked after effecting appropriate deduction. Normally the deductions can range from 20% upwards. We may however take the lowest of the quotient namely 20%. On that basis, over a period of two years i.e. between Pran Sukh (2010) 11 SCC 175 and Exh.P8 there would be no difference at all and the values would show the same rate. If the rate available from Exh.P4 is subjected to deduction of 20%, the corresponding value for a larger extent of land would be Rs.38.93 lakhs per acre. The difference between this value and the base value awarded in Pran Sukh (2010) 11 SCC 175 would then show the rise over a period of 7 years. In other words, the price of Rs.20.00 lakhs rose by Rs.18.93 lakhs in seven years that is to say it rose by 94.65% giving us an annual average of 13.52%. This rate represents pure increase on non-cumulative basis. If we adopt the rate, the base price as awarded in Pran Sukh (2010) 11 SCC 175 would have risen to the level of Rs.36.22 lakhs per acre. We may call this Method no.2. 25. The instances representing Exh. P1, P2 & P3 as well as P6, as a matter of fact do not show any increase at all as against the base rate as awarded in Pran Sukh (2010) 11 SCC 175 and the rise in Exh.P4 & P8 is also not substantial. Going by the law laid down by this Court on ONGC Ltd. (supra) in our considered view, the cumulative increase of 8% over the base rate as available in Pran Sukh (2010) 11 SCC 175 would give us the correct picture as to the rise in values in the area comprising of villages Naharpur Kasan and Kasan. The tabulated chart in that regard would be as under: chart 26. If the figures arrived at through these three methods are compared, the values of Rs.37.54 lakhs per acre under Method no.1, Rs.36.22 lakhs under Method no.2 and Rs.37.01 lakhs under Method no.3 are quite comparable. If the highest of these three figures is taken, the appropriate value for the lands in Naharpur Kasan and Kasan would be Rs.37.54 lakhs per acre in the year 2002. 27. The values in other three villages namely Bas Kusla, Bas Haria and Dhana have not shown any such increase. Apart from Exh.P1, P2 and P3, nothing has been placed on record, insofar as said villages are concerned. As stated herein above, even for these villages we may adopt the base rate of Rs.20.00 lakhs for the year 1994 and then consider the appropriate increase. As the sale deeds dated Exh. P1, P2 and P3 in respect of lands coming from these villages have not shown any increase at all, by way of rough and ready method we may adopt half the rise as shown in the lands coming from villages Naharpur Kasan and Kasan. Half the difference between Rs.20.00 lakhs as the base rate and Rs.37.54 lakhs adopted for the villages of Naharpur Kasan, Kasan and Manewsar would mean difference of Rs.8.77 lakhs over the base figure of Rs.20.00 lakhs as awarded in Pran Sukh (2010) 11 SCC 175. Thus, in our considered view, the market value of lands from villages Bas Kusla, Bas Haria and Dhana in 2002 must be at Rs.28.77 lakhs per acre. 28. In respect of lands coming from village Manesar, the High Court had granted 50% rise over and above the market value in respect of villages Naharpur Kasan and Kasan. The increase to that extent was well justified as the lands in village Manesar are abutting National Highway No.8 with excellent commercial potential. The grant of 50% rise is not seriously objected by the State and as such we confirm the same. Thus 50% rise over the figures as applicable to villages Naharpur Kasan and Kasan would lead us to the market value in respect of village Manesar which would be Rs.56.31 lakhs per acre. 29. We, however, find it difficult to accept grant of further 30% as severance charges to M/s. Kohli Holdings Private Limited. Normally the additional component of compensation in terms of Section 23(1)(thirdly) of the Act is granted when, a landholder suffers damage as a result of acquisition to the extent that the holding that he is left with stands comparatively diminished in terms of quality and value. For instance, if a railway track is to be built through an agricultural land held by a person,leaving two different halves with him, it would be impossible for him to carry on agricultural operations at an optimum level. This would lead to reduction in the value of the halves that he is left with. On the other hand, in a case where part of the holding is acquired for which appropriate commercial value is awarded, the rest of the value of the land will not stand diminished in terms of commercial potential. On the other hand, the potential of the remainder of the land would also increase drastically as the development would be right in the neighbourhood, thus giving substantial benefit to the landholder. In our view, the High Court was not justified in granting further compensation of 30% to M/s. Kohli Holdings Private Limited on account of severance charges.
### Response:
1
### Explanation:
arrived at first by considering the rate of deduction which the value representing the sale instance of August 2003 must suffer and secondly after effecting appropriate deduction, arrive at the appropriate value for the present purposes. We may call this Method no.1.24. We now consider the matter from a different perspective and take the rate awarded in Pran Sukhthe basis and then try to arrive at the appropriate value for the present acquisition. For this purpose, we may haveto determine the rate of increase as shown by the sale deeds on record. The acquisition in Pran Sukhof the year 1994 and the award of rate therein corresponds with the rate available on record through Exh.P6. We have two instances of Exh.P8 and P4, which may indicate the rise in values. However in both instances, the lands were very small plots i.e. of an extent of less than half an acre. If the prices are to be compared in real terms, the values representing in two sale deeds Exh.P4 and P8 must be re-worked after effecting appropriate deduction. Normally the deductions can range from 20% upwards. We may however take the lowest of the quotient namely 20%. On that basis, over a period of two years i.e. between Pran SukhExh.P8 there would be no difference at all and the values would show the same rate. If the rate available from Exh.P4 is subjected to deduction of 20%, the corresponding value for a larger extent of land would be Rs.38.93 lakhs per acre. The difference between this value and the base value awarded in Pran Sukhwould then show the rise over a period of 7 years. In other words, the price of Rs.20.00 lakhs rose by Rs.18.93 lakhs in seven years that is to say it rose by 94.65% giving us an annual average of 13.52%. This rate represents pure increase on non-cumulative basis. If weadopt the rate, the base price as awarded in Pran Sukhwould have risen to the level of Rs.36.22 lakhs per acre. We may call this Method no.2.25. The instances representing Exh. P1, P2 & P3 as well as P6, as a matter of fact do not show any increase at all as against the base rate as awarded in Pran Sukhrise in Exh.P4 & P8 is also not substantial. Going by the law laid down by this Court on ONGC Ltd. (supra) in our considered view, the cumulative increase of 8% over the base rate as available in Pran Sukhwould give us the correct picture as to the rise in values in the area comprising of villages Naharpur Kasan and Kasan.26. If the figures arrived at through these three methods are compared, the values of Rs.37.54 lakhs per acre under Method no.1, Rs.36.22 lakhs under Method no.2 and Rs.37.01 lakhs under Method no.3 are quite comparable. If the highest of these three figures is taken, the appropriate value for the lands in Naharpur Kasan and Kasan would be Rs.37.54 lakhs per acre in the year 2002.27. The values in other three villages namely Bas Kusla, Bas Haria and Dhana have not shown any such increase. Apart from Exh.P1, P2 and P3, nothing has been placed on record, insofar as said villages are concerned. As stated herein above, even for these villages we may adopt the base rate of Rs.20.00 lakhs for the year 1994 and then consider the appropriate increase. As the sale deeds dated Exh. P1, P2 and P3 in respect of lands coming from these villages have not shown any increase at all, by way of rough and ready method we may adopt half the rise as shown in the lands coming from villages Naharpur Kasan and Kasan. Half the difference between Rs.20.00 lakhs as the base rate and Rs.37.54 lakhs adopted for the villages of Naharpur Kasan, Kasan and Manewsar would mean difference of Rs.8.77 lakhs over the base figure of Rs.20.00 lakhs as awarded in Pran SukhThus, in our considered view, the market value of lands from villages Bas Kusla, Bas Haria and Dhana in 2002 must be at Rs.28.77 lakhs per acre.28. In respect of lands coming from village Manesar, the High Court had granted 50% rise over and above the market value in respect of villages Naharpur Kasan and Kasan. The increase to that extent was well justified as the lands in village Manesar are abutting National Highway No.8 with excellent commercial potential. The grant of 50% rise is not seriously objected by the State and as such we confirm the same. Thus 50% rise over the figures as applicable to villages Naharpur Kasan and Kasan would lead us to the market value in respect of village Manesar which would be Rs.56.31 lakhs per acre.29. We, however, find it difficult to accept grant of further 30% as severance charges to M/s. Kohli Holdings Private Limited. Normally the additional component of compensation in terms of Section 23(1)(thirdly) of the Act is granted when, a landholder suffers damage as a result of acquisition to the extent that the holding that he is left with stands comparatively diminished in terms of quality and value. For instance, if a railway track is to be built through an agricultural land held by a person,leaving two different halves with him, it would be impossible for him to carry on agricultural operations at an optimum level. This would lead to reduction in the value of the halves that he is left with. On the other hand, in a case where part of the holding is acquired for which appropriate commercial value is awarded, the rest of the value of the land will not stand diminished in terms of commercial potential. On the other hand, the potential of the remainder of the land would also increase drastically as the development would be right in the neighbourhood, thus giving substantial benefit to the landholder. In our view, the High Court was not justified in granting further compensation of 30% to M/s. Kohli Holdings Private Limited on account of severance charges.
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Kunnathat Thathunni Moopil Nair & Others Vs. State of Kerala & Another
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rights cannot therefore be said to have been infringed by the Act. 31. The lands of petitioners are land on which stand forests. It is said that under the Madras Preservation of Private Forests Act, (Act XXVII of 1949), which applies to the lands with which we are concerned as they are situated in an area which previously formed part of the State of Madras, the owners of the forests can work them only with the permission of the officer mentioned in that Act. It is said that the control imposed by the officers has been such that the income received from the forest is much less than the tax payable under the Act in respect of the land on which the forest stands. Taking by way of illustration Petition No. 13, it is pointed out that the income from the forest with which that petition is concerned was Rs. 8,477 for the year 1956-57 while the tax payable under the Act for more or less than same period was Rs. 1,51,000. I am unable to hold that because of this the Act offends Art. 19(1) (f) and (g). It is not stated that the land is not capable of producing any income other than the income from the forest standing on it. There is nothing to show that in all times to come the income from the lands including the income from the forest, will be less than the tax imposed on it by the Act. The area of the land concerned in Petition No. 13 is enormous being about 75,500 acres. I am further unable to hold the impugned Act to be invalid because of action that may be taken under another Act, namely, the Madras Act XXVII of 1949. 32. The validity of the Act is challenged also on the ground that it offends Art 31 of the Constitution. I am unable to see any force in this contention. If the statute is otherwise valid, as I have found the present Act to be, it cannot, even if it deprives any person of property, be said to offend Art. 31(1). It has been held by this Court in Ramjilal v. Income-tax Officer, Mohindargarh 1951 SCR 127 at p. 136 : (AIR 1951 SC 97 at p. 100) that "Clause (1) of Art. 31 must be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax for otherwise Art. 265 becomes wholly redundant." No question of Cl. (2) of Art. 31 being violated arises here for the Act does not deal with any acquisition of property. 33. It is also said that the Act is a colourable piece of legislation, namely, that though in form a taxing statute it, in effect, is intended to expropriate lands, held by the citizens in the State by imposing a tax too heavy for the land to bear. As was said in Bhairebendra Narayan v. State of Assam 1956 S.C.R. 303 : ((S) AIR 1956 S.C. 503). "The doctrine of colourable legislation is relevant only in connection with the question of legislative competency". In the present case, there being in my view, no want of legislative competency in the legislature which passed the Act in question, the Act cannot be assailed as a piece of colourable legislation. I may add that I do not accept the argument that the Act is in its nature exproprietary or that the tax imposed by it is really excessive. 34. I come now to the last argument advanced by the petitioners. It is said that the Act was beyond the legislative competence of the State Legislature. It is conceded that the State Legislature has power to impose a tax on land under entry 49 of List 2 in the Seventh Schedule to the Constitution, but it is said that land as mentioned in that entry does not include lands on which forests stand. It is contended that the State Legislature has power to legislate about forests under entry 19 of that List and also as to lands under entry 18. There is however no power to impose a tax on forests while there is power under entry 49 of that list to tax land. Therefore, it is said, that there is no power to impose tax on lands on which forests stands and the Act in so far as it imposes tax on lands covered by forests, which the lands of the petitioners are, is hence incompetent. 35. It is not in dispute that a State Legislature has no power to impose a tax on a matter with regard to which it has the power to legislate but has been given no express power to impose a tax. Therefore, I agree, that a State Legislature cannot impose tax on forests. I am however not convinced that "land in entry 49 is not intended to include land on which a forest stands. No doubt, a forest must stand on some land. In Shorter Oxford Dictionary, one of the meanings of "forest is given as an extensive tract of land covered by trees and undergrowth, sometimes intermingled with pastures. The concepts of forest and land however are entirely different. The principle idea conveyed by the word "forest is the trees and other growth on the land. Under entry 19 there may no doubt be legislation with regard to land in so far it is necessary for the purpose of the forest growing on it. It is well known that entries in the legislative lists have to be read as widely as possible. It is not necessary to cut down the plain meaning of the word "land in entry 49 to give full effect to the word "forest in entry 19. In my view, the two entries namely, entry 49 and entry 18 deal with entirely different matters. Therefore, under entry 49 taxation on land on which a forest stands is permissible and legal. 36. For these reasons I would dismiss these petitions.
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1[ds]From a review of the provisions of the Act, as amended as aforesaid, it will be clear that the provisions of the Act lay down in barest outline the policy to impose a uniform and, what is asserted to be, a low rate of land tax on all lands in the State of Kerala. Unlike other taxing statutes, it does not make any provision for issue of notice to the assessee, nor is there any provision for submission of a return by the assessee. By S. 5A, it authorises the Government to make a "provisional assessment in respect of land, which has not been surveyed, and such provisional assessment is made payable by the person made liable under the Act. It does not make any provision for any appeals in cases where the assessee may feel dissatisfied with the assessment. The Act does contemplate the making of "a regular assessment of the basic tax. But it does not indicate as to when the regular assessment would be made, except indicating that it can be made only after a survey has been made in respect of the land assessed. The Act could not have been cast in more general terms and the proceedings under the Act could not have been more summary. It has thus the merit of brevity as also of simplicity, derived from the fact that a tax is levied at a flat rate, irrespective of the quality of the land and consequently of its productive capacity, Under the Act, the charge has to be levied, whether or not any income has been derived from the land. The Legislature was so much in earnest about levying and realising the tax that it could not even wait for a regular survey of the lands to be assessed with a view to determining the extent and character of the landArticle 265 imposes a limitation on the taxing power of the State in so far as it provides that the State shall not levy or collect a tax, except by authority of law, that is to say, a tax cannot be levied or collected by a mere executive fiat. It has to be done by authority of law, which must mean valid law. In order that the law may be valid, the tax proposed to be levied must be within the legislative competence of the Legislature imposing a tax and authorising the collection thereof and, secondly, the tax must be subject to the conditions laid down in Art. 13 of the Constitution. One of such conditions envisaged by Art. 13(2) is that the Legislature shall not make any law which takes away or abridges the equality clause in Art. 14, which enjoins the State not to deny to any person equality before the law or the equal protection of the laws of the country. It cannot be disputed that if the Act infringes the provisions of Art. 14 of the Constitution, it must be struck down as unconstitutional. For the purpose of these cases, we shall assume that the State Legislature had the necessary competence to enact the law, though the petitioners have seriously challenged such a competence. The guarantee of equal protection of the laws must extend even to taxing statutes. It has not been contended otherwise. It does not mean that every person should be taxed equally. But it does mean that if property of the same character has to be taxed, the taxation must be by the same standard, so that the burden of taxation may fall equally on all persons holding that kind and extent of property. If the taxation, generally speaking, imposes a similar burden on every one with reference to that particular kind and extent of property, on the same basis of taxation, the law shall not be open to attack on the ground of inequality, even though the result of the taxation may be that the total burden on different persons may be unequal. Hence, if the Legislature has classified persons of properties into different categories, which are subjected to different rates of taxation with reference to income or property, such a classification would not be open to the attack of inequality on the ground that the total burden resulting from such a classification is unequal. Similarly, different kinds of property may be subjected to different rates of taxation, but so long as there is a rational basis for the classification, Art. 14 will not be in the way of such a classification resulting in unequal burdens on different classes of properties. But if the same class of property similarly situated is subjected to an incident of taxation, which results in inequality, the law may be struck down as creating an inequality amongst holders of the same kind of property. It must, therefore, be held that a taxing statute is not wholly immune from attack on the ground that it infringes the equality clause in Art. 14, though the Courts are not concerned with the policy underlying a taxing statute or whether a particular tax could not have been imposed in a different way or in a way that the Court might think more just and equitable. The Act has, therefore, to be examined with reference to the attack based on Art. 14 of the Constitution8. It is common ground that the tax, assuming that the Act is really a taxing statute and not a confiscatory measure, as contended on behalf of the petitioners, has no reference to income, either actual or potential, from the property sought to be taxed. Hence, it may be rightly remarked that the Act obliges every person who holds land to pay the tax at the flat rate prescribed whether or not he makes any income out of the property or whether or not the property is capable of yielding any income. The Act, in terms, claims to be "a general revenue settlement of the State (S. 3). Ordinarily a, tax on land or land revenue is assessed on the actual or the potential productivity of the land sought to be taxed. In other words, the tax has reference to the income actually made, or which could have been made, with due diligence, and, therefore, is levied with due regard to the incidence of the taxation. Under the Act in question we shall take a hypothetical case of a number of persons owning and possessing the same area of land. One makes nothing out of the land, because it is arid desert. The second one does not make any income, but could raise some crop after a disproportionately large investment of labour and capital. A third one, in due course of husbandry, is making the land yield just enough to pay for the incidental expenses and labour charges besides land tax or revenue. The fourth is making large profits, because the land is very fertile and capable of yielding good crops. Under the Act, it is manifest that the fourth category, in our illustration, would easily be able to bear the burden of the tax. The third one may be able to bear the tax. The first and the second one will have to pay from their own pockets, if they could afford the tax. If they cannot afford the tax, the property is liable to be sold, in due process of law, for realisation of the public demand. It is clear, therefore, that inequality is writ large on the Act and is inherent in the very provisions of the taxing Section. It is also clear that there is no attempt at classification in the provisions of the Act. Hence, no more need be said as to what could have been the basis for a valid classification. It is one of those cases where the lack of classification creates inequality. It is, therefore, clearly hit by the prohibition to deny equality before the law contained in Art. 14 of the Constitution. Furthermore, Sec. 7 of the Act, quoted above, particularly the latter part, which vests the Government with the power wholly or partially to exempt any land from the provisions of the Act, is clearly discriminatory in its effect and, therefore, infringes Art. 14 of the Constitution. The Act does not lay down any principle or policy for the guidance of the exercise of discretion by the Government in respect of the selection contemplated by S. 79. The provisions of the Act are unconstitutional viewed from the angle of the provisions of Art. 19(1)(f) of the Constitution, also. Apart from the provisions of Ss. 4 and 7 discussed above, with reference to the test under Art. 14 of the Constitution, we find that S. 5(A) is also equally objectionable because it imposes unreasonable restrictions on the rights to hold property, safeguarded by Art. 19(1)(f) of the Constitution. Section 5(A) declares that the Government is competent to make a provisional assessment of the basic tax payable by the holder of unsurveyed land. Ordinarily, a taxing statute lays down a regular machinery for making assessment of the tax proposed to be imposed by the statute. It lays down detailed procedure as to notice to the proposed assessee to make a return in respect of property proposed to be taxed, prescribes the authority and the procedure for hearing any objections to the liability for taxation or as to the extent of the tax proposed to be levied, and finally, as to the right to challenge the regularity of assessment made, by recourse to proceedings in a higher Civil Court. The Act merely declares the competence of the Government to make a provisional assessment, and by virtue of S. 3 of the Madras Revenue Recovery Act, 1864, the land-holders may be liable to pay the tax. The Act being silent as to the machinery and procedure to be followed in making the assessment leaves it to the Executive to evolve the requisite machinery and procedure. The whole thing, from beginning to end, is treated as of a purely administrative character, completely ignoring the legal position that the assessment of a tax on person or property is at least of a quasi-judicial character. Again, the Act does not impose an obligation on the Government to undertake survey proceedings within any prescribed or ascertainable period, with the result that a land-holder may be subjected to repeated annual provisional assessments on more or less conjectural basis and liable to pay the tax thus assessed. Though the Act was passed about five years ago, we were informed at the Bar that survey proceedings had not even commenced. The Act thus proposes to impose a liability on land-holders to pay a tax which is not to be levied on a judicial basis, because (1) the procedure to be adopted does not require a notice to be given to the proposed assessee; (2) there is no procedure for rectification of mistakes committed by the Assessing Authority; (3) there is no procedure prescribed for obtaining the opinion of a superior Civil Court on questions of law, as is generally found in all taxing statutes, and (4) no duty is cast upon the Assessing Authority to act judicially in the matter of assessment proceedings. Nor is there any right of appeal provided to such assessees as may feel aggrieved by the order of assessment10. That the provisions aforesaid of the impugned Act are in their effect confiscatory is clear on their face. Taking the extreme case, the facts of which we have stated in the early part of this judgment, it can be illustrated that the provisions of the Act, without proposing to acquire the privately owned forests in the State of Kerala after satisfying the conditions laid down in Art. 31 of the Constitution have the effect of eliminating the private owners through the machinery of the Act. The petitioner in petition 42 of 1958 has been assumed to own 25 thousand acres of forest land. The liability under the Act would thus amount to Rs. 50,000/- a year, as already demanded from the petitioner on the basis of the provisional assessment under the provisions of S. 5(A). The petitioner is making an income of Rs. 3,100/- per year out of the forests. Besides, the liability of Rs. 50,000/- as aforesaid, the petitioner has to pay a levy of Rs. 4,000/- on the surveyed portions of the said forest. Hence, his liability for taxation in respect of his forest land amounts to Rs. 54,000/- whereas his annual income for the time being is only Rs. 3,100/- without making an deductions for expenses of management. Unless the petitioner is very enamoured of the property and of the right to hold it, it may be assumed that he will not be in a position to pay the deficit of about Rs. 51,000/- every year in respect of the forests in his possession. The legal consequences of his making a default in the payment of the aforesaid sum of money will be that the money will be realised by the coercive process of law. One can easily imagine that the property may be sold at auction and may not fetch even the amount for the realisation of which it may be proposed to be sold at public auction. In the absence of a bidder forthcoming to bid for the offset amount the State ordinarily becomes the auction purchaser for the realisation of the outstanding taxes. It is clear, therefore, that apart from being discriminatory and imposing unreasonable restrictions on holding property the Act is clearly confiscatory in character and effect. It is not even necessary to tear the veil, as was suggested in the course of the argument, to arrive at the conclusion that the Act has that unconstitutional effect. For these reasons, as also for the reasons for which the provisions of Ss. 4 and 7 have been declared to be unconstitutional, in view of the provisions of Act. 14 of the Constitution, all these operative Sections of the Act namely 4, 5A and 7, must be held to offend Art. 19 (1) (f) of the Constitution also.
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### 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:
rights cannot therefore be said to have been infringed by the Act. 31. The lands of petitioners are land on which stand forests. It is said that under the Madras Preservation of Private Forests Act, (Act XXVII of 1949), which applies to the lands with which we are concerned as they are situated in an area which previously formed part of the State of Madras, the owners of the forests can work them only with the permission of the officer mentioned in that Act. It is said that the control imposed by the officers has been such that the income received from the forest is much less than the tax payable under the Act in respect of the land on which the forest stands. Taking by way of illustration Petition No. 13, it is pointed out that the income from the forest with which that petition is concerned was Rs. 8,477 for the year 1956-57 while the tax payable under the Act for more or less than same period was Rs. 1,51,000. I am unable to hold that because of this the Act offends Art. 19(1) (f) and (g). It is not stated that the land is not capable of producing any income other than the income from the forest standing on it. There is nothing to show that in all times to come the income from the lands including the income from the forest, will be less than the tax imposed on it by the Act. The area of the land concerned in Petition No. 13 is enormous being about 75,500 acres. I am further unable to hold the impugned Act to be invalid because of action that may be taken under another Act, namely, the Madras Act XXVII of 1949. 32. The validity of the Act is challenged also on the ground that it offends Art 31 of the Constitution. I am unable to see any force in this contention. If the statute is otherwise valid, as I have found the present Act to be, it cannot, even if it deprives any person of property, be said to offend Art. 31(1). It has been held by this Court in Ramjilal v. Income-tax Officer, Mohindargarh 1951 SCR 127 at p. 136 : (AIR 1951 SC 97 at p. 100) that "Clause (1) of Art. 31 must be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax for otherwise Art. 265 becomes wholly redundant." No question of Cl. (2) of Art. 31 being violated arises here for the Act does not deal with any acquisition of property. 33. It is also said that the Act is a colourable piece of legislation, namely, that though in form a taxing statute it, in effect, is intended to expropriate lands, held by the citizens in the State by imposing a tax too heavy for the land to bear. As was said in Bhairebendra Narayan v. State of Assam 1956 S.C.R. 303 : ((S) AIR 1956 S.C. 503). "The doctrine of colourable legislation is relevant only in connection with the question of legislative competency". In the present case, there being in my view, no want of legislative competency in the legislature which passed the Act in question, the Act cannot be assailed as a piece of colourable legislation. I may add that I do not accept the argument that the Act is in its nature exproprietary or that the tax imposed by it is really excessive. 34. I come now to the last argument advanced by the petitioners. It is said that the Act was beyond the legislative competence of the State Legislature. It is conceded that the State Legislature has power to impose a tax on land under entry 49 of List 2 in the Seventh Schedule to the Constitution, but it is said that land as mentioned in that entry does not include lands on which forests stand. It is contended that the State Legislature has power to legislate about forests under entry 19 of that List and also as to lands under entry 18. There is however no power to impose a tax on forests while there is power under entry 49 of that list to tax land. Therefore, it is said, that there is no power to impose tax on lands on which forests stands and the Act in so far as it imposes tax on lands covered by forests, which the lands of the petitioners are, is hence incompetent. 35. It is not in dispute that a State Legislature has no power to impose a tax on a matter with regard to which it has the power to legislate but has been given no express power to impose a tax. Therefore, I agree, that a State Legislature cannot impose tax on forests. I am however not convinced that "land in entry 49 is not intended to include land on which a forest stands. No doubt, a forest must stand on some land. In Shorter Oxford Dictionary, one of the meanings of "forest is given as an extensive tract of land covered by trees and undergrowth, sometimes intermingled with pastures. The concepts of forest and land however are entirely different. The principle idea conveyed by the word "forest is the trees and other growth on the land. Under entry 19 there may no doubt be legislation with regard to land in so far it is necessary for the purpose of the forest growing on it. It is well known that entries in the legislative lists have to be read as widely as possible. It is not necessary to cut down the plain meaning of the word "land in entry 49 to give full effect to the word "forest in entry 19. In my view, the two entries namely, entry 49 and entry 18 deal with entirely different matters. Therefore, under entry 49 taxation on land on which a forest stands is permissible and legal. 36. For these reasons I would dismiss these petitions.
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any land from the provisions of the Act, is clearly discriminatory in its effect and, therefore, infringes Art. 14 of the Constitution. The Act does not lay down any principle or policy for the guidance of the exercise of discretion by the Government in respect of the selection contemplated by S. 79. The provisions of the Act are unconstitutional viewed from the angle of the provisions of Art. 19(1)(f) of the Constitution, also. Apart from the provisions of Ss. 4 and 7 discussed above, with reference to the test under Art. 14 of the Constitution, we find that S. 5(A) is also equally objectionable because it imposes unreasonable restrictions on the rights to hold property, safeguarded by Art. 19(1)(f) of the Constitution. Section 5(A) declares that the Government is competent to make a provisional assessment of the basic tax payable by the holder of unsurveyed land. Ordinarily, a taxing statute lays down a regular machinery for making assessment of the tax proposed to be imposed by the statute. It lays down detailed procedure as to notice to the proposed assessee to make a return in respect of property proposed to be taxed, prescribes the authority and the procedure for hearing any objections to the liability for taxation or as to the extent of the tax proposed to be levied, and finally, as to the right to challenge the regularity of assessment made, by recourse to proceedings in a higher Civil Court. The Act merely declares the competence of the Government to make a provisional assessment, and by virtue of S. 3 of the Madras Revenue Recovery Act, 1864, the land-holders may be liable to pay the tax. The Act being silent as to the machinery and procedure to be followed in making the assessment leaves it to the Executive to evolve the requisite machinery and procedure. The whole thing, from beginning to end, is treated as of a purely administrative character, completely ignoring the legal position that the assessment of a tax on person or property is at least of a quasi-judicial character. Again, the Act does not impose an obligation on the Government to undertake survey proceedings within any prescribed or ascertainable period, with the result that a land-holder may be subjected to repeated annual provisional assessments on more or less conjectural basis and liable to pay the tax thus assessed. Though the Act was passed about five years ago, we were informed at the Bar that survey proceedings had not even commenced. The Act thus proposes to impose a liability on land-holders to pay a tax which is not to be levied on a judicial basis, because (1) the procedure to be adopted does not require a notice to be given to the proposed assessee; (2) there is no procedure for rectification of mistakes committed by the Assessing Authority; (3) there is no procedure prescribed for obtaining the opinion of a superior Civil Court on questions of law, as is generally found in all taxing statutes, and (4) no duty is cast upon the Assessing Authority to act judicially in the matter of assessment proceedings. Nor is there any right of appeal provided to such assessees as may feel aggrieved by the order of assessment10. That the provisions aforesaid of the impugned Act are in their effect confiscatory is clear on their face. Taking the extreme case, the facts of which we have stated in the early part of this judgment, it can be illustrated that the provisions of the Act, without proposing to acquire the privately owned forests in the State of Kerala after satisfying the conditions laid down in Art. 31 of the Constitution have the effect of eliminating the private owners through the machinery of the Act. The petitioner in petition 42 of 1958 has been assumed to own 25 thousand acres of forest land. The liability under the Act would thus amount to Rs. 50,000/- a year, as already demanded from the petitioner on the basis of the provisional assessment under the provisions of S. 5(A). The petitioner is making an income of Rs. 3,100/- per year out of the forests. Besides, the liability of Rs. 50,000/- as aforesaid, the petitioner has to pay a levy of Rs. 4,000/- on the surveyed portions of the said forest. Hence, his liability for taxation in respect of his forest land amounts to Rs. 54,000/- whereas his annual income for the time being is only Rs. 3,100/- without making an deductions for expenses of management. Unless the petitioner is very enamoured of the property and of the right to hold it, it may be assumed that he will not be in a position to pay the deficit of about Rs. 51,000/- every year in respect of the forests in his possession. The legal consequences of his making a default in the payment of the aforesaid sum of money will be that the money will be realised by the coercive process of law. One can easily imagine that the property may be sold at auction and may not fetch even the amount for the realisation of which it may be proposed to be sold at public auction. In the absence of a bidder forthcoming to bid for the offset amount the State ordinarily becomes the auction purchaser for the realisation of the outstanding taxes. It is clear, therefore, that apart from being discriminatory and imposing unreasonable restrictions on holding property the Act is clearly confiscatory in character and effect. It is not even necessary to tear the veil, as was suggested in the course of the argument, to arrive at the conclusion that the Act has that unconstitutional effect. For these reasons, as also for the reasons for which the provisions of Ss. 4 and 7 have been declared to be unconstitutional, in view of the provisions of Act. 14 of the Constitution, all these operative Sections of the Act namely 4, 5A and 7, must be held to offend Art. 19 (1) (f) of the Constitution also.
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Madhya Pradesh Mines Vs. R. B. Sreeram Durga Prasad Limited
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1953, 4,000 tons of Second Grade manganese ore at the rate of Rs. 103/- per ton f.o.r. Sitasaongi and Dattapoa. By the second contract No. 66 the defendants agreed to supply on or before December 31, 1953, 6000 tons of High Grade manganese ore at the rate of Rs. 142/- f.o.r. Sitasaongi and Dattapohar. Under Contract No. 65 the defendants supplied 3,649 tons which were accepted. 320 tons of ore offered by the defendants was not accepted, because it was according to the plaintiffs, not according to the specifications. The defendants thereafter did not supply the balance of 351 tons. Under Contract No. 66 upto December 27, 1953, the defendants supplied 2,873 tons 3 c.w.t. The defendants also offered to supply between 28th and 31st of December, 1953, 3,693 tons in ten lots, but on sampling it was found that the contents of silica, phosphorous and iron of the manganese ore were not according to the specifications under the terms of the contract, and the plaintiffs declined to accept the quantity offered. 3. On the allegation that the defendants had committed breach of contract, the plaintiffs commenced an action in the Court of the Additional District Judge, Bhandara, for a decree in which they originally claimed Rs. 1,84,137/5/6 which was later by amendment increased to Rs. 3,56,949/-. Under Contract No. 65 the plaintiffs claimed Rs. 88, 596/- and under Contract No. 66 Rs. 2,68,853/-. The plaintiffs claimed that time was the essence of the contracts and the defendants had failed and neglected to deliver manganese ore according to the specifications within the period of the contracts. The defendants contended, inter alia, that they had offered 351 tons of manganese ore under Contract No. 65 which the plaintiffs did not accept. They also contended that the contract was acted upon till August 7, 1953, and thereafter the parties agreed to waive the contract. In respect of Contract No.66 the defendants contended that they had supplied managenese ore to the plaintiffs since January 1953 under several contracts, and that there used to be distinct subsequent oral agreements by which the written terms about the specifications of the various contents of the ore were modified, and the plaintiffs agreed not of enforce the specifications regarding silica, iron and phosphorous contents of the ore but to accept the ore; that there was a distinct subsequent oral agreement after Contract No. 66 was executed by which the plaintiffs agreed that they would not enforce the stipulation about the contents of silica, iron and phosphorous, and even about the manganese contents of each lot it was agreed that the plaintiffs would accept on the basis of average of grouped lots taken together provided the overall average came to 46.25 percent though any one or more lots show the contents less than 46 per cent. but not less than 45.1 per cent that in pursuance of the agreement 2.873 tons were not analysed in respect of non-manganese contents; that the stacks of 3, 693 tons of ore were prepared and offered but were not accepted by the plaintiffs; that the plaintiffs by their declarations, acts and omissions intentionally caused and permitted the defendants to believe that they will not enforce the terms stipulated in the contract, but will accept the ore under the terms as modified by the subsequent oral agreement; that the plaintiffs had never informed the defendants that they intended to enforce the original terms of the contract and the plaintiffs having failed to do so in good time before December 31, 1953, the delivery offered to them of 3,693 tons was according to the specifications as agreed after the terms of the contract were originally recorded. 4. The Trial Court held that the stipulation as to time was of the essence of contract under both the contracts, and that the terms of the contracts were not orally modified by the parties subsequent to the execution of the contracts. The Court further held that 3,693 tons of ore offered by the defendants under Contract No. 66 between December 28 to 31, 1953, were below the agreed specifications, and the defendants had committed breach of contract, and were liable in damages. The Trial Court on that view decreed the claim against the defendants for Rupees 1,87,955/- and proportionate costs. 5. In appeal by the defendants the High Court confirmed the decree passed by the Trial Court. The High Court agreed with the view of the Trial Court that the defendants failed to establish the case that there was a subsequent oral agreement varying the terms of the written contract in respect of the specifications relating to the contents of silica, phosphorous and iron. 6. The Trial Court held that the defendants had failed to supply 351 tons of manganese ore under Contract No. 65: at the hearing of the appeal before the High Court counsel abandoned the defendants plea in respect of Contract No. 65. He conceded that the defendants were unable to establish that the plaintiffs had wrongfully refused to accept 351 tons of ore under Contract No. 65. Before us, counsel for the defendants has not sought to press the appeal in respect of the claim decreed by the Trial Court and confirmed by the High Court in respect of Contract No. 65. 7. In respect of the claim for breach of Contract No. 66 counsel for the defendants sought to urge the contention raised before the negatived by the Trial Court and the High Court in answer to the plaintiffs claim that there was an oral agreement between the parties whereby the plaintiffs agreed to modify the specifications and to accept the manganese ore supplied by the defendants according to the modified specifications.That plea was not accepted by the Trial Court and the decision of the Trial Court has been confirmed by the High Court. This is a finding on a question of fact and we see no reason to reappreciate the evidence for determining whether the Courts erred in reaching that finding.
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0[ds]7. In respect of the claim for breach of Contract No. 66 counsel for the defendants sought to urge the contention raised before the negatived by the Trial Court and the High Court in answer to the plaintiffs claim that there was an oral agreement between the parties whereby the plaintiffs agreed to modify the specifications and to accept the manganese ore supplied by the defendants according to the modifiedt plea was not accepted by the Trial Court and the decision of the Trial Court has been confirmed by the High Court. This is a finding on a question of fact and we see no reason to reappreciate the evidence for determining whether the Courts erred in reaching that finding.
| 0 | 1,180 | 128 |
### 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:
1953, 4,000 tons of Second Grade manganese ore at the rate of Rs. 103/- per ton f.o.r. Sitasaongi and Dattapoa. By the second contract No. 66 the defendants agreed to supply on or before December 31, 1953, 6000 tons of High Grade manganese ore at the rate of Rs. 142/- f.o.r. Sitasaongi and Dattapohar. Under Contract No. 65 the defendants supplied 3,649 tons which were accepted. 320 tons of ore offered by the defendants was not accepted, because it was according to the plaintiffs, not according to the specifications. The defendants thereafter did not supply the balance of 351 tons. Under Contract No. 66 upto December 27, 1953, the defendants supplied 2,873 tons 3 c.w.t. The defendants also offered to supply between 28th and 31st of December, 1953, 3,693 tons in ten lots, but on sampling it was found that the contents of silica, phosphorous and iron of the manganese ore were not according to the specifications under the terms of the contract, and the plaintiffs declined to accept the quantity offered. 3. On the allegation that the defendants had committed breach of contract, the plaintiffs commenced an action in the Court of the Additional District Judge, Bhandara, for a decree in which they originally claimed Rs. 1,84,137/5/6 which was later by amendment increased to Rs. 3,56,949/-. Under Contract No. 65 the plaintiffs claimed Rs. 88, 596/- and under Contract No. 66 Rs. 2,68,853/-. The plaintiffs claimed that time was the essence of the contracts and the defendants had failed and neglected to deliver manganese ore according to the specifications within the period of the contracts. The defendants contended, inter alia, that they had offered 351 tons of manganese ore under Contract No. 65 which the plaintiffs did not accept. They also contended that the contract was acted upon till August 7, 1953, and thereafter the parties agreed to waive the contract. In respect of Contract No.66 the defendants contended that they had supplied managenese ore to the plaintiffs since January 1953 under several contracts, and that there used to be distinct subsequent oral agreements by which the written terms about the specifications of the various contents of the ore were modified, and the plaintiffs agreed not of enforce the specifications regarding silica, iron and phosphorous contents of the ore but to accept the ore; that there was a distinct subsequent oral agreement after Contract No. 66 was executed by which the plaintiffs agreed that they would not enforce the stipulation about the contents of silica, iron and phosphorous, and even about the manganese contents of each lot it was agreed that the plaintiffs would accept on the basis of average of grouped lots taken together provided the overall average came to 46.25 percent though any one or more lots show the contents less than 46 per cent. but not less than 45.1 per cent that in pursuance of the agreement 2.873 tons were not analysed in respect of non-manganese contents; that the stacks of 3, 693 tons of ore were prepared and offered but were not accepted by the plaintiffs; that the plaintiffs by their declarations, acts and omissions intentionally caused and permitted the defendants to believe that they will not enforce the terms stipulated in the contract, but will accept the ore under the terms as modified by the subsequent oral agreement; that the plaintiffs had never informed the defendants that they intended to enforce the original terms of the contract and the plaintiffs having failed to do so in good time before December 31, 1953, the delivery offered to them of 3,693 tons was according to the specifications as agreed after the terms of the contract were originally recorded. 4. The Trial Court held that the stipulation as to time was of the essence of contract under both the contracts, and that the terms of the contracts were not orally modified by the parties subsequent to the execution of the contracts. The Court further held that 3,693 tons of ore offered by the defendants under Contract No. 66 between December 28 to 31, 1953, were below the agreed specifications, and the defendants had committed breach of contract, and were liable in damages. The Trial Court on that view decreed the claim against the defendants for Rupees 1,87,955/- and proportionate costs. 5. In appeal by the defendants the High Court confirmed the decree passed by the Trial Court. The High Court agreed with the view of the Trial Court that the defendants failed to establish the case that there was a subsequent oral agreement varying the terms of the written contract in respect of the specifications relating to the contents of silica, phosphorous and iron. 6. The Trial Court held that the defendants had failed to supply 351 tons of manganese ore under Contract No. 65: at the hearing of the appeal before the High Court counsel abandoned the defendants plea in respect of Contract No. 65. He conceded that the defendants were unable to establish that the plaintiffs had wrongfully refused to accept 351 tons of ore under Contract No. 65. Before us, counsel for the defendants has not sought to press the appeal in respect of the claim decreed by the Trial Court and confirmed by the High Court in respect of Contract No. 65. 7. In respect of the claim for breach of Contract No. 66 counsel for the defendants sought to urge the contention raised before the negatived by the Trial Court and the High Court in answer to the plaintiffs claim that there was an oral agreement between the parties whereby the plaintiffs agreed to modify the specifications and to accept the manganese ore supplied by the defendants according to the modified specifications.That plea was not accepted by the Trial Court and the decision of the Trial Court has been confirmed by the High Court. This is a finding on a question of fact and we see no reason to reappreciate the evidence for determining whether the Courts erred in reaching that finding.
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0
### Explanation:
7. In respect of the claim for breach of Contract No. 66 counsel for the defendants sought to urge the contention raised before the negatived by the Trial Court and the High Court in answer to the plaintiffs claim that there was an oral agreement between the parties whereby the plaintiffs agreed to modify the specifications and to accept the manganese ore supplied by the defendants according to the modifiedt plea was not accepted by the Trial Court and the decision of the Trial Court has been confirmed by the High Court. This is a finding on a question of fact and we see no reason to reappreciate the evidence for determining whether the Courts erred in reaching that finding.
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Union Vs. Aluminium Factory Workers 'Indian Aluminium Company, Limited
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under Art. 226 of the Constitution for an order quashing the reference on the same grounds.The High Court did not decide the first two preliminary objections but quashed the reference on the ground that there could be no reference till the awards had been terminated by notice under S. 19(6) as till then It had to be held In view of the settlement that Mathai was not a workman within the meaning of the Act as it stood in 1954. It had not been disputed before the High Court that Mathai was not a supervisor, nor that no notice terminating the awards had been given. The present appeal is from the judgment of the High Court.6. Sri Sastri appearing for the appellant union first contended that "supervisors" mentioned in the awards of 19 January 1952 did not include Mathai and therefore the awards did not bind him. He relied for this purpose on certain departmental orders issued by the company in 1953 which stated that only foremen and supervisory staff above the category of foreman were Included in the term "supervisory" and that they formed part of the management. It appears from the evidence that Mathai held a post below that of a foreman. There is no reason to doubt this evidence. Sri Sastri, therefore, contended that Mathai was not a supervisor within the meaning of the earlier awards. It seems to us that this contention is unsound. The departmental orders were of the year 1953, that is to say, of later dates than the awards of 1952. These departmental orders cannot therefore prove that Mathai was not a supervisor in 1952. The awards clearly show that Markose who held the post below that of a foreman was considered to be a supervisor. Likewise they indicate that Mathai was at the date of the awards a supervisor. The evidence also shows that there wore two types of supervisory staff, one below and one above foreman. The fact that Mathai held a rank below that of a foreman did not show that he was not a supervisor. Sri Sastris first point must therefore fall. So long as the awards of 1952 are not terminated, it cannot be contended that Mathai was a workman. On that basis the reference would be incompetent and, therefore, liable to be quashed. Sri Sastri next contended that the award in the reference to which the appellant union was a party, in so far as it provides that supervisors would not be workmen was outside the order of reference and was, therefore, of no effect in view of the provisions of S.10(4) of the Industrial Disputes Act. That section provides that where in an order of reference to an industrial tribunal, the Government has specified the points of dispute for adjudication the tribunal shall confine its adjudication to those points and matters incidental thereto. It is said that one of the awards though by compromise, in so far as it decided that supervisors are not workmen was neither within the points of reference nor incidental thereto and was, therefore, to this extent of no effect. That is the award to which the appellant union was a party and it is that union only which is contending that Mathai is a workman. This union, It to said, is therefore not prevented by the award from contending that Mathai though a supervisor was a workman.We are unable to accept this contention. It seems to us that the provision in the award that supervisors shall not be deemed to be workmen was clearly incidental to the points of reference. One of the points of reference resulting in the earlier award to which the staff association was a party was whether Markose, a supervisor, should have been promoted as foreman. The company agreed to promote Markose as a foreman only on the condition that the union would accept the principle that no supervisor would be considered to be a workman. In fact the award provided that promotion would be given to Markose only after the workmen had excluded him from their union. The award settled this point by providing for the promotion of Markose as foreman on the condition that the workmen agreed that supervisors would no longer be regarded as workmen. The company would not have agreed to promote Markose as a foreman unless the workmen had agreed that supervisors would no more be considered to be workmen. One provision was the consideration for the other. Hence the provision that supervisors would not be workmen was clearly incidental to the dispute referred. Again it was as a part of the entire settlement that the dispute concerning Mathai, who was also a supervisor, was abandoned. The two awards had obviously been made together and were connected with each other. Both awards wore made in respect of disputes with workmen of the same employer. The tribunal has recorded that the disputes in the two references had been settled by a joint agreement. The award concerning the appellant union contained the same provision that supervisors would not be regarded as workmen. It was because of this that the workmen had been given certain ex-gratia payment. The learned Solicitor-General appearing for the respondent drew our attention to certain correspondence which passed before and after the awards. This correspondence shows that the appellant union and the staff association of the company fully accepted the principle that supervisors would no longer be regarded as workmen and that all the supervisors had resigned from membership of the workmens unions. Indeed one of the letters that the staff association and the workers union jointly wrote to the companys works manager shows that in terms of the award Markose and Mathai had been excluded from the unions. This is clear evidence that Mathai was a supervisor and further that the provision that supervisory staff should not be regarded as workmen was incidental to the points of reference also in the matter in which the appellant union was a party.
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0[ds]There is no reason to doubt thisSastri, therefore, contended that Mathai was not a supervisor within the meaning of the earlier awards. It seems to us that this contention is unsound. The departmental orders were of the year 1953, that is to say, of later dates than the awards of 1952. These departmental orders cannot therefore prove that Mathai was not a supervisor in 1952. The awards clearly show that Markose who held the post below that of a foreman was considered to be a supervisor. Likewise they indicate that Mathai was at the date of the awards a supervisor. The evidence also shows that there wore two types of supervisory staff, one below and one above foreman. The fact that Mathai held a rank below that of a foreman did not show that he was not a supervisor. Sri Sastris first point must therefore fall. So long as the awards of 1952 are not terminated, it cannot be contended that Mathai was a workman. On that basis the reference would be incompetent and, therefore, liable to beseems to us that the provision in the award that supervisors shall not be deemed to be workmen was clearly incidental to the points of reference. One of the points of reference resulting in the earlier award to which the staff association was a party was whether Markose, a supervisor, should have been promoted as foreman. The company agreed to promote Markose as a foreman only on the condition that the union would accept the principle that no supervisor would be considered to be a workman. In fact the award provided that promotion would be given to Markose only after the workmen had excluded him from their union. The award settled this point by providing for the promotion of Markose as foreman on the condition that the workmen agreed that supervisors would no longer be regarded as workmen. The company would not have agreed to promote Markose as a foreman unless the workmen had agreed that supervisors would no more be considered to be workmen. One provision was the consideration for the other. Hence the provision that supervisors would not be workmen was clearly incidental to the dispute referred. Again it was as a part of the entire settlement that the dispute concerning Mathai, who was also a supervisor, was abandoned. The two awards had obviously been made together and were connected with each other. Both awards wore made in respect of disputes with workmen of the same employer. The tribunal has recorded that the disputes in the two references had been settled by a joint agreement. The award concerning the appellant union contained the same provision that supervisors would not be regarded as workmen. It was because of this that the workmen had been given certainpayment. The learnedappearing for the respondent drew our attention to certain correspondence which passed before and after the awards. This correspondence shows that the appellant union and the staff association of the company fully accepted the principle that supervisors would no longer be regarded as workmen and that all the supervisors had resigned from membership of the workmens unions. Indeed one of the letters that the staff association and the workers union jointly wrote to the companys works manager shows that in terms of the award Markose and Mathai had been excluded from the unions. This is clear evidence that Mathai was a supervisor and further that the provision that supervisory staff should not be regarded as workmen was incidental to the points of reference also in the matter in which the appellant union was a party
| 0 | 1,788 | 645 |
### 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:
under Art. 226 of the Constitution for an order quashing the reference on the same grounds.The High Court did not decide the first two preliminary objections but quashed the reference on the ground that there could be no reference till the awards had been terminated by notice under S. 19(6) as till then It had to be held In view of the settlement that Mathai was not a workman within the meaning of the Act as it stood in 1954. It had not been disputed before the High Court that Mathai was not a supervisor, nor that no notice terminating the awards had been given. The present appeal is from the judgment of the High Court.6. Sri Sastri appearing for the appellant union first contended that "supervisors" mentioned in the awards of 19 January 1952 did not include Mathai and therefore the awards did not bind him. He relied for this purpose on certain departmental orders issued by the company in 1953 which stated that only foremen and supervisory staff above the category of foreman were Included in the term "supervisory" and that they formed part of the management. It appears from the evidence that Mathai held a post below that of a foreman. There is no reason to doubt this evidence. Sri Sastri, therefore, contended that Mathai was not a supervisor within the meaning of the earlier awards. It seems to us that this contention is unsound. The departmental orders were of the year 1953, that is to say, of later dates than the awards of 1952. These departmental orders cannot therefore prove that Mathai was not a supervisor in 1952. The awards clearly show that Markose who held the post below that of a foreman was considered to be a supervisor. Likewise they indicate that Mathai was at the date of the awards a supervisor. The evidence also shows that there wore two types of supervisory staff, one below and one above foreman. The fact that Mathai held a rank below that of a foreman did not show that he was not a supervisor. Sri Sastris first point must therefore fall. So long as the awards of 1952 are not terminated, it cannot be contended that Mathai was a workman. On that basis the reference would be incompetent and, therefore, liable to be quashed. Sri Sastri next contended that the award in the reference to which the appellant union was a party, in so far as it provides that supervisors would not be workmen was outside the order of reference and was, therefore, of no effect in view of the provisions of S.10(4) of the Industrial Disputes Act. That section provides that where in an order of reference to an industrial tribunal, the Government has specified the points of dispute for adjudication the tribunal shall confine its adjudication to those points and matters incidental thereto. It is said that one of the awards though by compromise, in so far as it decided that supervisors are not workmen was neither within the points of reference nor incidental thereto and was, therefore, to this extent of no effect. That is the award to which the appellant union was a party and it is that union only which is contending that Mathai is a workman. This union, It to said, is therefore not prevented by the award from contending that Mathai though a supervisor was a workman.We are unable to accept this contention. It seems to us that the provision in the award that supervisors shall not be deemed to be workmen was clearly incidental to the points of reference. One of the points of reference resulting in the earlier award to which the staff association was a party was whether Markose, a supervisor, should have been promoted as foreman. The company agreed to promote Markose as a foreman only on the condition that the union would accept the principle that no supervisor would be considered to be a workman. In fact the award provided that promotion would be given to Markose only after the workmen had excluded him from their union. The award settled this point by providing for the promotion of Markose as foreman on the condition that the workmen agreed that supervisors would no longer be regarded as workmen. The company would not have agreed to promote Markose as a foreman unless the workmen had agreed that supervisors would no more be considered to be workmen. One provision was the consideration for the other. Hence the provision that supervisors would not be workmen was clearly incidental to the dispute referred. Again it was as a part of the entire settlement that the dispute concerning Mathai, who was also a supervisor, was abandoned. The two awards had obviously been made together and were connected with each other. Both awards wore made in respect of disputes with workmen of the same employer. The tribunal has recorded that the disputes in the two references had been settled by a joint agreement. The award concerning the appellant union contained the same provision that supervisors would not be regarded as workmen. It was because of this that the workmen had been given certain ex-gratia payment. The learned Solicitor-General appearing for the respondent drew our attention to certain correspondence which passed before and after the awards. This correspondence shows that the appellant union and the staff association of the company fully accepted the principle that supervisors would no longer be regarded as workmen and that all the supervisors had resigned from membership of the workmens unions. Indeed one of the letters that the staff association and the workers union jointly wrote to the companys works manager shows that in terms of the award Markose and Mathai had been excluded from the unions. This is clear evidence that Mathai was a supervisor and further that the provision that supervisory staff should not be regarded as workmen was incidental to the points of reference also in the matter in which the appellant union was a party.
### Response:
0
### Explanation:
There is no reason to doubt thisSastri, therefore, contended that Mathai was not a supervisor within the meaning of the earlier awards. It seems to us that this contention is unsound. The departmental orders were of the year 1953, that is to say, of later dates than the awards of 1952. These departmental orders cannot therefore prove that Mathai was not a supervisor in 1952. The awards clearly show that Markose who held the post below that of a foreman was considered to be a supervisor. Likewise they indicate that Mathai was at the date of the awards a supervisor. The evidence also shows that there wore two types of supervisory staff, one below and one above foreman. The fact that Mathai held a rank below that of a foreman did not show that he was not a supervisor. Sri Sastris first point must therefore fall. So long as the awards of 1952 are not terminated, it cannot be contended that Mathai was a workman. On that basis the reference would be incompetent and, therefore, liable to beseems to us that the provision in the award that supervisors shall not be deemed to be workmen was clearly incidental to the points of reference. One of the points of reference resulting in the earlier award to which the staff association was a party was whether Markose, a supervisor, should have been promoted as foreman. The company agreed to promote Markose as a foreman only on the condition that the union would accept the principle that no supervisor would be considered to be a workman. In fact the award provided that promotion would be given to Markose only after the workmen had excluded him from their union. The award settled this point by providing for the promotion of Markose as foreman on the condition that the workmen agreed that supervisors would no longer be regarded as workmen. The company would not have agreed to promote Markose as a foreman unless the workmen had agreed that supervisors would no more be considered to be workmen. One provision was the consideration for the other. Hence the provision that supervisors would not be workmen was clearly incidental to the dispute referred. Again it was as a part of the entire settlement that the dispute concerning Mathai, who was also a supervisor, was abandoned. The two awards had obviously been made together and were connected with each other. Both awards wore made in respect of disputes with workmen of the same employer. The tribunal has recorded that the disputes in the two references had been settled by a joint agreement. The award concerning the appellant union contained the same provision that supervisors would not be regarded as workmen. It was because of this that the workmen had been given certainpayment. The learnedappearing for the respondent drew our attention to certain correspondence which passed before and after the awards. This correspondence shows that the appellant union and the staff association of the company fully accepted the principle that supervisors would no longer be regarded as workmen and that all the supervisors had resigned from membership of the workmens unions. Indeed one of the letters that the staff association and the workers union jointly wrote to the companys works manager shows that in terms of the award Markose and Mathai had been excluded from the unions. This is clear evidence that Mathai was a supervisor and further that the provision that supervisory staff should not be regarded as workmen was incidental to the points of reference also in the matter in which the appellant union was a party
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The Commissioner Of Income-Tax, Bombay City Ii Vs. Shri Sitaldas Tirathdas
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by that charge the income from property can be said to be diverted so as to bring the matter within S. 9(1) (iv) of the Act. The case was one of application of the particular section of the Act and not one of an obligation created by a money decree, whether income accrued or not. The case is, therefore, distinguishable from the present, and we need not consider whether in the special circumstances of that case it was correctly decided.14. In V. M. Raghavalu Naidu and Sons v. Commissioner of Income-tax, 1950-18 ITR 787 : (AIR 1950 Mad 790 ), the assessees were the executors and trustees or a will, who were required to pay maintenance allowances to the mother and widow of the testator. The amount of these allowances was sought to be deducted, but the claim was disallowed. Satyanarayana Rao and Viswanatha Sastri, JJ. distinguished the case from that of the Privy Council in Bejoy Singh Dudhuria, 1933-1 ITR 135 : (AIR 1933 PC 145 ). Viswanatha Sastri, J. observed that the testator was under a personal obligation under the Hindu law to maintain his wife and mother, and if he had spent a portion of his income on such maintenance, he could not have deducted the amount from his assessable income, and that the position of the executor was no better. Satyanarayana Rao, J. added that the amount was not an allowance which was charged upon the estate by a decree of Court or otherwise and which the testator himself had no right or title to receive. The income which was received by the executors included the amount paid as maintenance, and a portion of it was thus applied in discharging the obligation.15. The last cited case is again of the Bombay High Court, which seems to have influenced the decision in the instant case. That is reported in 1957-31 ITR 735 : (AIR 1957 Bom 291 ). In that case, there was a managing agency, which belonged to a Hindu joint family consisting of A, his son B and As wife. A partition took place, and it was agreed that the managing agency should be divided, A and B taking a mojety each of the managing agency remuneration but each of them paying As wife 2 as. 8 pies out of their respective 8 as. share in the managing agency remuneration. Chagla, C. J. and Tendolkar, J. held that under the deed of partition A and B had really intended that they were to receive only a portion of the managing agency commission and that the amount paid to As wife was diverted before it became the income of A and B and could be deducted. The learned Judge observed at p. 741 (of ITR) : (at p. 293 of AIR) as follows :"We are inclined to accept the submission of Mr. Kolah that it does constitute a charge, but in our opinion, it is unnecessary to decide this question because this question can only have relevance and significance if we were considering a claim made for deduction under S. 9(1)(iv) of the Income-tax Act where a claim is made in respect of immovable property where the immovable property is charged or mortgaged to pay a certain amount. It is sufficient for the purpose of this reference if we come to the conclusion that Bhagirathibai had a legal enforceable right against the partner in respect of her 2 annas and 8 pies share and that the partner was under a legal obligation to pay that amount."16. These are the cases which have considered the problem from various angles. Some of them appear to have applied the principle correctly and some, not. But we do not propose to examine the correctness of the decisions in the light of the facts in them. In our opinion, the true test is whether the amount sought to be deducted, in truth, never reached the assessee as his income. Obligations, no doubt there, are in every case, but it is the nature of the obligation which is the decisive fact. There is a difference between an amount which a person is obligated to apply out of his income and an amount which by the nature of the obligation cannot be said to be a part of the income of the assessee. Where by the obligation income is diverted before it reaches the assessee, it is deductible; but where the income is required to be applied to discharge an obligation after such income reaches the assessee, the same consequence, in law, does not follow. It is the first kind of payment which can truly be excused and not the second. The second payment is merely an obligation to pay another a portion of ones own income, which has been received and is since applied. The first is a case in which the income never reaches the assessee, who even if he were to collect it, does so, not as part of his income, but for and on behalf of the person to whom it is payable.In our opinion, the present case is one in which the wife and children of the assessee who continued to be members of the family received a portion of the income of the assessee, after the assessee had received the income as his own. The case is one of application of a portion of the income to discharge an obligation and not a case in which by an overriding charge the assessee became only a collector of anothers income. The matter in the present case would have been different, if such an overriding charge had existed either upon the property or upon its income, which is not the case. In our opinion, the case falls outside the rule in Bejoy Singh Dudhurias case, 1933-1 ITR 135 : (AIR 1933 PC 145 ) and rather falls within the rule stated by the Judicial Committee in P. C. Mullicks case, 1938-6 ITR 206 : (AIR 1938 PC 118 ).
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1[ds]We are of opinion that the contention raised by the Department is correct.6. Before we state the principle on which this and similar cases are to be decided, we may refer to certain rulings, which illustrate the aspects the problem takes. The leading case on the subject is the decision of the Judicial Committee in Bejoy Singh Dudhurias case, 1933-1 ITR 135 : (AIR 1933 PC 145 ). There, the stepmother of the Raja had brought a suit for maintenance and a compromise decree was passed under which the stepmother was to be paid Rs. 1,100 per month, which amount was declared a charge up on the properties in the hands of the Raja, by the Court. The Raja sought to deduct this amount from his assessable income, which was disallowed by the High Court at. These are the cases which have considered the problem from various angles. Some of them appear to have applied the principle correctly and some, not. But we do not propose to examine the correctness of the decisions in the light of the facts in them. In our opinion, the true test is whether the amount sought to be deducted, in truth, never reached the assessee as his income. Obligations, no doubt there, are in every case, but it is the nature of the obligation which is the decisive fact. There is a difference between an amount which a person is obligated to apply out of his income and an amount which by the nature of the obligation cannot be said to be a part of the income of the assessee. Where by the obligation income is diverted before it reaches the assessee, it is deductible; but where the income is required to be applied to discharge an obligation after such income reaches the assessee, the same consequence, in law, does not follow. It is the first kind of payment which can truly be excused and not the second. The second payment is merely an obligation to pay another a portion of ones own income, which has been received and is since applied. The first is a case in which the income never reaches the assessee, who even if he were to collect it, does so, not as part of his income, but for and on behalf of the person to whom it is payable.In our opinion, the present case is one in which the wife and children of the assessee who continued to be members of the family received a portion of the income of the assessee, after the assessee had received the income as his own. The case is one of application of a portion of the income to discharge an obligation and not a case in which by an overriding charge the assessee became only a collector of anothers income. The matter in the present case would have been different, if such an overriding charge had existed either upon the property or upon its income, which is not the case. In our opinion, the case falls outside the rule in Bejoy Singh Dudhurias case, 1933-1 ITR 135 : (AIR 1933 PC 145 ) and rather falls within the rule stated by the Judicial Committee in P. C. Mullicks case, 1938-6 ITR 206 : (AIR 1938 PC 118 ).
| 1 | 3,704 | 604 |
### 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:
by that charge the income from property can be said to be diverted so as to bring the matter within S. 9(1) (iv) of the Act. The case was one of application of the particular section of the Act and not one of an obligation created by a money decree, whether income accrued or not. The case is, therefore, distinguishable from the present, and we need not consider whether in the special circumstances of that case it was correctly decided.14. In V. M. Raghavalu Naidu and Sons v. Commissioner of Income-tax, 1950-18 ITR 787 : (AIR 1950 Mad 790 ), the assessees were the executors and trustees or a will, who were required to pay maintenance allowances to the mother and widow of the testator. The amount of these allowances was sought to be deducted, but the claim was disallowed. Satyanarayana Rao and Viswanatha Sastri, JJ. distinguished the case from that of the Privy Council in Bejoy Singh Dudhuria, 1933-1 ITR 135 : (AIR 1933 PC 145 ). Viswanatha Sastri, J. observed that the testator was under a personal obligation under the Hindu law to maintain his wife and mother, and if he had spent a portion of his income on such maintenance, he could not have deducted the amount from his assessable income, and that the position of the executor was no better. Satyanarayana Rao, J. added that the amount was not an allowance which was charged upon the estate by a decree of Court or otherwise and which the testator himself had no right or title to receive. The income which was received by the executors included the amount paid as maintenance, and a portion of it was thus applied in discharging the obligation.15. The last cited case is again of the Bombay High Court, which seems to have influenced the decision in the instant case. That is reported in 1957-31 ITR 735 : (AIR 1957 Bom 291 ). In that case, there was a managing agency, which belonged to a Hindu joint family consisting of A, his son B and As wife. A partition took place, and it was agreed that the managing agency should be divided, A and B taking a mojety each of the managing agency remuneration but each of them paying As wife 2 as. 8 pies out of their respective 8 as. share in the managing agency remuneration. Chagla, C. J. and Tendolkar, J. held that under the deed of partition A and B had really intended that they were to receive only a portion of the managing agency commission and that the amount paid to As wife was diverted before it became the income of A and B and could be deducted. The learned Judge observed at p. 741 (of ITR) : (at p. 293 of AIR) as follows :"We are inclined to accept the submission of Mr. Kolah that it does constitute a charge, but in our opinion, it is unnecessary to decide this question because this question can only have relevance and significance if we were considering a claim made for deduction under S. 9(1)(iv) of the Income-tax Act where a claim is made in respect of immovable property where the immovable property is charged or mortgaged to pay a certain amount. It is sufficient for the purpose of this reference if we come to the conclusion that Bhagirathibai had a legal enforceable right against the partner in respect of her 2 annas and 8 pies share and that the partner was under a legal obligation to pay that amount."16. These are the cases which have considered the problem from various angles. Some of them appear to have applied the principle correctly and some, not. But we do not propose to examine the correctness of the decisions in the light of the facts in them. In our opinion, the true test is whether the amount sought to be deducted, in truth, never reached the assessee as his income. Obligations, no doubt there, are in every case, but it is the nature of the obligation which is the decisive fact. There is a difference between an amount which a person is obligated to apply out of his income and an amount which by the nature of the obligation cannot be said to be a part of the income of the assessee. Where by the obligation income is diverted before it reaches the assessee, it is deductible; but where the income is required to be applied to discharge an obligation after such income reaches the assessee, the same consequence, in law, does not follow. It is the first kind of payment which can truly be excused and not the second. The second payment is merely an obligation to pay another a portion of ones own income, which has been received and is since applied. The first is a case in which the income never reaches the assessee, who even if he were to collect it, does so, not as part of his income, but for and on behalf of the person to whom it is payable.In our opinion, the present case is one in which the wife and children of the assessee who continued to be members of the family received a portion of the income of the assessee, after the assessee had received the income as his own. The case is one of application of a portion of the income to discharge an obligation and not a case in which by an overriding charge the assessee became only a collector of anothers income. The matter in the present case would have been different, if such an overriding charge had existed either upon the property or upon its income, which is not the case. In our opinion, the case falls outside the rule in Bejoy Singh Dudhurias case, 1933-1 ITR 135 : (AIR 1933 PC 145 ) and rather falls within the rule stated by the Judicial Committee in P. C. Mullicks case, 1938-6 ITR 206 : (AIR 1938 PC 118 ).
### Response:
1
### Explanation:
We are of opinion that the contention raised by the Department is correct.6. Before we state the principle on which this and similar cases are to be decided, we may refer to certain rulings, which illustrate the aspects the problem takes. The leading case on the subject is the decision of the Judicial Committee in Bejoy Singh Dudhurias case, 1933-1 ITR 135 : (AIR 1933 PC 145 ). There, the stepmother of the Raja had brought a suit for maintenance and a compromise decree was passed under which the stepmother was to be paid Rs. 1,100 per month, which amount was declared a charge up on the properties in the hands of the Raja, by the Court. The Raja sought to deduct this amount from his assessable income, which was disallowed by the High Court at. These are the cases which have considered the problem from various angles. Some of them appear to have applied the principle correctly and some, not. But we do not propose to examine the correctness of the decisions in the light of the facts in them. In our opinion, the true test is whether the amount sought to be deducted, in truth, never reached the assessee as his income. Obligations, no doubt there, are in every case, but it is the nature of the obligation which is the decisive fact. There is a difference between an amount which a person is obligated to apply out of his income and an amount which by the nature of the obligation cannot be said to be a part of the income of the assessee. Where by the obligation income is diverted before it reaches the assessee, it is deductible; but where the income is required to be applied to discharge an obligation after such income reaches the assessee, the same consequence, in law, does not follow. It is the first kind of payment which can truly be excused and not the second. The second payment is merely an obligation to pay another a portion of ones own income, which has been received and is since applied. The first is a case in which the income never reaches the assessee, who even if he were to collect it, does so, not as part of his income, but for and on behalf of the person to whom it is payable.In our opinion, the present case is one in which the wife and children of the assessee who continued to be members of the family received a portion of the income of the assessee, after the assessee had received the income as his own. The case is one of application of a portion of the income to discharge an obligation and not a case in which by an overriding charge the assessee became only a collector of anothers income. The matter in the present case would have been different, if such an overriding charge had existed either upon the property or upon its income, which is not the case. In our opinion, the case falls outside the rule in Bejoy Singh Dudhurias case, 1933-1 ITR 135 : (AIR 1933 PC 145 ) and rather falls within the rule stated by the Judicial Committee in P. C. Mullicks case, 1938-6 ITR 206 : (AIR 1938 PC 118 ).
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M/S. NEEL ENTERPRISES Vs. STATE BANK OF INDIA
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Kurian, J. 1. Leave granted. 2. The appellant approached the Debt Recovery Tribunal (for short `the DRT) against the notice under Section 13(2) dated 21.08.2014 issued by the respondent Bank under The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. 3. There was a delay of 14 days. The DRT declined to condone the delay. The appellant approached the High Court. The High Court relegated the appellant to Debt Recovery Appellate Tribunal (for short `the DRAT). The High Court in the impugned order also directed the appellant to deposit 25% of the amount covered by the 13(2) notice. Thus, aggrieved, the appellant has approached this Court. 4. The matter has been pending before this Court for the last two years. The Section 13(2) notice was issued in the year 2014. Having regard to the entire facts and circumstances of the case, we are of the view that the interest of justice would be met in case the appellant is permitted to pursue his objection to the notice under Section 13(2) before the DRT.
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1[ds]4. The matter has been pending before this Court for the last two years. The Section 13(2) notice was issued in the year 2014. Having regard to the entire facts and circumstances of the case, we are of the view that the interest of justice would be met in case the appellant is permitted to pursue his objection to the notice under Section 13(2) before the DRT.
| 1 | 218 | 82 |
### 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:
Kurian, J. 1. Leave granted. 2. The appellant approached the Debt Recovery Tribunal (for short `the DRT) against the notice under Section 13(2) dated 21.08.2014 issued by the respondent Bank under The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. 3. There was a delay of 14 days. The DRT declined to condone the delay. The appellant approached the High Court. The High Court relegated the appellant to Debt Recovery Appellate Tribunal (for short `the DRAT). The High Court in the impugned order also directed the appellant to deposit 25% of the amount covered by the 13(2) notice. Thus, aggrieved, the appellant has approached this Court. 4. The matter has been pending before this Court for the last two years. The Section 13(2) notice was issued in the year 2014. Having regard to the entire facts and circumstances of the case, we are of the view that the interest of justice would be met in case the appellant is permitted to pursue his objection to the notice under Section 13(2) before the DRT.
### Response:
1
### Explanation:
4. The matter has been pending before this Court for the last two years. The Section 13(2) notice was issued in the year 2014. Having regard to the entire facts and circumstances of the case, we are of the view that the interest of justice would be met in case the appellant is permitted to pursue his objection to the notice under Section 13(2) before the DRT.
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Seshammal and Ors., etc. etc Vs. State of Tamil Nadu
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trustee is limited in respect of the sources of recruitment. Instead of casting his net wide for selecting a proper candidate, he appoints the next heir of the last holder of the office. That after his appointment the Archaka performs worship is no ground for holding that the appointment is either a religious practice or a matter of religion.22. In view of sub-section (2) of Section 55, as it now stands amended, the choice of the trustee in the matter of appointment of an Archaka is no longer limited by the operation of the rule of next-in-line of succession in temples where the usage was to appoint the Archaka on the hereditary principle. The trustee is not bound to make the appointment on the sole ground that the candidate, is the next-in-line of succession to the last holder of office. To that extent, and to that extent alone, the trustee is released from the obligation imposed on him by Section 28 of the principal Act to administer the affairs in accordance with that part of the usage of a temple which enjoined hereditary appointments. The legislation in this respect, as we have shown, does not interfere with any religious practice or matter of religion and, therefore, is not invalid.23. We shall now take separately the several amendments which were challenged as invalid. Section 2 of the Amendment Act amended Section 55 of the principal Act and the important change which was impugned on behalf of the petitioners related to the abolition of the hereditary principle in the appointment of the Archaka. We have shown for reasons already mentioned that the change effected by the Amendment is not invalid. The order changes effected in the other provisions of the principal Act appear to us to be merely consequential. Since the hereditary principle was done away with the words "whether the office or service is hereditary or not" found in Section 56 of the Principal Act have been omitted by Section 3 of the Amendment Act. By Section 4 of the letter Act clause (xxiii) of sub-section (2) in Section 116 is suitably amended with a view to deleting the reference to the qualifications of hereditary and non-hereditary offices which was there in clause (xxiii) of the principal Act. The change is only consequential on the amendment of Section 55 of the principal Act. Sections 5 and 6 of the Amendment Act are also consequential on the amendment of Sections 55 and 56. These are all the sections in the Amendment Act and in our view the Amendment Act as a whole must be regarded as valid.24. It was, however, submitted before us that the State had taken power under Section 116(2), clause (xxiii) to prescribe qualifications to be possessed by the Archakas and, in view of the avowed object of the State Government to create a class of Archakas irrespective of caste, creed or race, it would be open to the Government to prescribe qualifications for the office of an Archaka which were in conflict with Agamas. Under Rule 12 of the Madras Hindu Religious Institutions (Officers and Servants) Service Rules, 1964 proper provision has been made for qualifications of the Archakas and the petitioners have no objection to that rule. The rule still continues to be in force. But the petitioners apprehend that it is open to the Government to substitute any other rule for Rule 12 and prescribe qualifications which were in conflict with Agamic injunctions. For example at present the Ulthurai servant whose duty it is to perform pujas and recite vedic mantras etc, has to obtain the fitness certificate for his office from the head of institutions which impart instructions in Agamas and from the head of institutions which impart instructions in Agamas and ritualistic matters. The Government, however, it is submitted, may hereafter change its mind and prescribe qualifications which take no note of Agamas and Agamic rituals and direct that the Archaka candidate should produce a fitness certificate from an institution which does not specialize in teaching Agamas and rituals. It is submitted that the Act does not provide guidelines to the Government in the matter of prescribing qualifications with regard to the fitness of an Archaka for performing the rituals and ceremonies in these temples and it will be open to the Government to prescribe a simple standardized curriculum for pujas in the several temples ignoring the traditional pujas and rituals followed in those temples. In our opinion the apprehensions of the petitioners are unfounded. Rule 12 referred to above still holds the field and there is no good reason to think that the State Government wants to revolutionize temple worship by introducing methods of worship not current in the several temples. The rule-making power conferred on the Government by Section 116 is only intended with a view to carry out the purpose of the Act which are essentially secular. The Act nowhere gives the indication that one of the purposes of the Act is to effect a change in the rituals and ceremonies followed in the temples. On the other hand, Section 107 of the Principal Act emphasizes that nothing contained in the Act would be deemed to confer any power or impose any duty in contravention of the rights conferred on any religious denomination or any section thereof by Article 26 of the Constitution. Similarly, Section 105 provides that nothing contained in the Act shall (a) save as otherwise expressly provided in the Act or the rules made thereunder, affect any honour, emolument or perquisite to which any person is entitled by custom or otherwise in any religious institution, or its established usage in regard to any other matter. Moreover, if any rule is framed by the Government which purports to interfere with the rituals and ceremonies of the temples the same will be liable to be challenged by those who are interested in the temple worship. In our opinion, therefore, the apprehensions now expressed by the petitioners are groundless and premature.
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0[ds]10. It is clear from a perusal of the above provisions that the Amendment Act does away the hereditary right of succession to the office of Archaka even if the Archaka was qualified under Rule 12 of the Madras Hindu Religious Institutions (Officers and Servants) Service Rules,gives the measure of the importance attached by the worshippers to certain modes of worship. The idea most prominent in the mind of the worshipper is that a departure from the traditional rules would result in the pollution or defilement of the image which must be avoided at all costs. That is also the rationale for preserving the sanctity of the Garbhagriha or the sanctum sanctorum. In all these temples in which the images are consecrated, the Agamas insist that only the qualified Archaka or Pujari shall step inside the sanctum sanctorum and that too after observing the daily disciplines which are imposed upon him by the Agamas. As an Archaka he has to touch the image in the course of the worship and it is his sole right and duty to touch it. The touch of anybody else would defile it. Thus under the ceremonial law pertaining to temples even the question as to who is to enter the Garbhagriha or the sanctum sanctorum and who is not entitled to enter it and who can worship and from which place in the temple are all matters of religion as shown in the above decision of this Court.12. The Agamas have also rules with regard to the Archakas. In Saivite temples only devotee of Siva, and there too, one belonging to a particular denomination or group or sub-group is entitled to be the Archaka. If he is a Saivite, he cannot possibly be an Archaka in a Vaishnavite Agama temple to whatever caste he may belong and however learned he may be. Similarly, a Vaishnavite Archaka has no place as an Archaka in a Saivite temple. Indeed there is no bar to a Saivite worshipping in a Vaishnavite temple as a lay worshipper or vice versa. What the Agamas prohibit is his appointment as an Archaka in a temple of a different denomination. Dr. Kane has quoted the Brahmapurana on the topic of Punah-pratishtha (Re-consecration of images in temples) at page 904 of his History of Dharmasastra referred to above. The Brahmapurana says that "when an image is broken into two or is reduced to particles, is burnt, is removed from its pedestal, is insulted, has ceased to be worshipped, is touched by beasts like donkeys or falls on impure ground or is worshipped with mantras of other deities or is rendered impure by the touch of outcastes and the like - in these ten contingencies, God ceases to indwell therein". The Agamas appear to be more severe in this respect. Shri R. Parthasarthy Bhattacharya, whose authority on Agama literature is unquestioned, has filed his affidavit in Writ Petition No. 442 of 1971 and stated in his affidavit, with special reference to the Vaikhanasa Sutra to which he belongs, that according to the texts of the Vaikhanasa Shastra (Agama), persons who are the followers of the four Rishi traditions of Bhrigu, Atri, Marichi and Kashyapa and born of Vaikhanasa parents are alone competent to do puja in Vaikhanasa temples of Vaishnavites. They only can touch the idols and perform the ceremonies and rituals. None others, however high placed in society as pontiffs or Acharyas, or even other Brahmins could touch the idol, do puja or even enter the Garbha Griha. Not even a person belonging to another Agama is competent to do puja in Vaikhanasa temples. That is the general rule with regard to all these sectarian denominational temples. It is, therefore, manifest that the Archaka of such a temple besides being proficient in the rituals appropriate to the worship of the particular deity, must also belong, according to the Agamas, to a particular denomination. An Archaka of a different denomination is supposed to defile the image by his touch and since it is of the essence of the religious faith of all worshippers that there should be no pollution or defilement of the image under any circumstances, the Archaka undoubtedly occupies an important place in the matter of temple worship. Any State action which permits the defilement or pollution of the image by the touch of an Archaka not authorised by the Agamas would violently interfere with the religious faith and practices of the Hindu worshipper in a vital respect, and would, therefore, be prima facie invalid under Article 25(1) of the Constitution.It has been recognised for a long time that where the ritual in a temple cannot be performed except by a person belonging to a denomination, the purpose of worship will be defeated : See Mohan Lalji v. Gordhan Lalji Maharaj (35 All (PC) 283 at p. 289.). In that case the claimants to the temple and its worship were Brahmins and the daughters sons of the founder and his nearest heirs under the Hindu law. But their claim was rejected on the ground that the temple was dedicated to the sect following the principles of Vallabh Archarya in whose temples only the Gossains of that sect could perform the rituals and ceremonies and, therefore, the claimants had no right either to the temple or to perform the worship. In view of the Amendment Act and its avowed object there was nothing, in the petitioners submission, to prevent the Government from prescribing a standardised ritual in all temples ignoring the Agamic requirements, and Archakas being forced on temples from denominations unauthorised by the Agamas. Since such a departure, as already shown, would inevitably lead to the defilement of the image, the powers thus taken by the Government under the Amendment Act would lead to interference with religious freedom guaranteed under Articles 25 and 26 of the Constitution.We have found no any difficulty in agreeing with the learned Advocate General that Section 28(1) of the Principal Act which directs the trustee to administer the affairs of the temple in accordance with the terms of the trust or the usage of the institution, would control the appointment of the Archaka to be made by him under the amended Section 55 of the Act. In a Saivite or a Vaishnavite temple the appointment of the Archaka will have to be made from a specified denomination, sect or group in accordance with the directions of the Agamas governing those temples. Failure to do so would not only be contrary to Section 28(1) which requires the trustee to follow the usage of the temple, but would also interfere with a religious practice the inevitable result of which would be to defile the image. The question, however, remains whether the trustee, while making appointment from the specified denomination, sect or group in accordance with the Agamas, will be bound to follow the hereditary principle as a usage peculiar to the temple. The learned Advocate-General contends that there is no such invariable usage. It may be that, as a matter of convenience, an Archakas son being readily available to perform the worship may have been selected for appointment as an Archaka from times immemorial. But that, in his submission, was not a usage. The principle of next-in-line of succession has failed when the successor was a female or had refused to accept the appointment or was under some disability. In all such cases the Archaka was appointed from the particular denomination, sector group and the worship was carried on with the help of such a substitute. It, however, appears to us that it is now too late in the day to contend that the hereditary principle in appointment was not a usage. For whatever reasons, whether of convenience or otherwise, this hereditary principle might have been adopted there can be no doubt that the principle had been accepted from antiquity and had also been fully recognised in the unamended Section 55 of the Principal Act. Sub-section (2) of Section 55 provided that where the office or service is hereditary, the person next in the line of succession shall be entitled to succeed and only a limited right was given under sub-section (3) to the trustee to appoint a substitute. Even in such cases the explanation to sub-section (3) provided that in making the appointment of the substitute the trustee should have due regard to the claims of the members of the family, if any, entitled to the succession. Therefore, it cannot be denied as a fact that there are several temples in Tamil Nadu where the appointment of an Archaka is governed by the usage of hereditary succession. Thereal question, therefore, is whether such a usage should be regarded either as a secular usage or a religious usage. If it is a secular usage, it is obvious, legislation would be permissible under Article 25(1)(a) and if it is a religious usage it would be permissible if it falls squarely under sub-section 25(1)(b).It is true that a priest or an Archaka when appointed has to perform some religious functions but the question is whether the appointment of a priest is by itself a secular function or a religiouswe are afraid such an illustration is inapt when we are considering the appointment of an Archaka of a temple. The Archaka has never been regarded as a spiritual head of any institution. He may be an accomplished person, well versed in the Agamas and rituals necessary to be performed in a temple but he does not have the status of a spiritual head. Then again the assumption made that the Archaka may be chosen in a variety of ways is not correct. The Dharam-karta or the Shebait makes the appointment and the Archaka is a servants of the temple. It has been held in K. Seshadri Aiyangar v. Ranga Bhattar (ILR 35 Mad 631 .), that even the position of the hereditary Archaka of a temple is that of a servant subject to the disciplinary power of the trustee. The trustee can enquire into the conduct of such a servant and dismiss him for misconduct. As a servant he is subject to the discipline and control of the trustee as recognised by the unamended Section 56 of the Principal Act which provides "all office-holders and servants attached to a religious institution or in receipt of any emolument or perquisite therefrom shall, whether the office or service is hereditary or not, be controlled by the trustee and the trustee may, after following the prescribed procedure, if any, fine, suspend, remove or dismiss any of them for breach of trust, incapacity, disobedience of orders, neglect of duty, misconduct or other sufficient cause." That being the position of an Archaka, the act of his appointment by the trustee is essentially secular. He owes his appointment to a secular authority. Any lay founder of a temple may appoint the Archaka. The Shebaits and Managers of temples exercise essentially a secular function in choosing and appointing the Archaka. That the son of an Archaka or the sons son has been continued in the office from generation to generation does not make any difference to the principle of appointment and no such hereditary Archaka can claim any right to the office. See Kali Krishan Ray v. Makhan Lal Mookerjee (ILR 50 Cal 233.), Nanabhai Narotamdas v. Trimbak Balwant Bhandare ((1878-80) Vol. 4, Unreported printed), and Maharanee Indurjeet Kooer v. Chundemun Misser (XVI Weekly Reporter 99.). Thus the appointment of an Archaka is a secular act and the fact that in some temples the hereditary principle was followed in making the appointment would not make the successive appointments anything but secular. It would only mean that in making the appointment the trustee is limited in respect of the sources of recruitment. Instead of casting his net wide for selecting a proper candidate, he appoints the next heir of the last holder of the office. That after his appointment the Archaka performs worship is no ground for holding that the appointment is either a religious practice or a matter of religion.22. In view of sub-section (2) of Section 55, as it now stands amended, the choice of the trustee in the matter of appointment of an Archaka is no longer limited by the operation of the rule of next-in-line of succession in temples where the usage was to appoint the Archaka on the hereditary principle. The trustee is not bound to make the appointment on the sole ground that the candidate, is the next-in-line of succession to the last holder of office. To that extent, and to that extent alone, the trustee is released from the obligation imposed on him by Section 28 of the principal Act to administer the affairs in accordance with that part of the usage of a temple which enjoined hereditary appointments. The legislation in this respect, as we have shown, does not interfere with any religious practice or matter of religion and, therefore, is notSection 4 of the letter Act clause (xxiii) of sub-section (2) in Section 116 is suitably amended with a view to deleting the reference to the qualifications of hereditary and non-hereditary offices which was there in clause (xxiii) of the principal Act. The change is only consequential on the amendment of Section 55 of the principal Act. Sections 5 and 6 of the Amendment Act are also consequential on the amendment of Sections 55 and 56. These are all the sections in the Amendment Act and in our view the Amendment Act as a whole must be regarded as valid.24. It was, however, submitted before us that the State had taken power under Section 116(2), clause (xxiii) to prescribe qualifications to be possessed by the Archakas and, in view of the avowed object of the State Government to create a class of Archakas irrespective of caste, creed or race, it would be open to the Government to prescribe qualifications for the office of an Archaka which were in conflict with Agamas. Under Rule 12 of the Madras Hindu Religious Institutions (Officers and Servants) Service Rules, 1964 proper provision has been made for qualifications of the Archakas and the petitioners have no objection to that rule. The rule still continues to be in force. But the petitioners apprehend that it is open to the Government to substitute any other rule for Rule 12 and prescribe qualifications which were in conflict with Agamic injunctions. For example at present the Ulthurai servant whose duty it is to perform pujas and recite vedic mantras etc, has to obtain the fitness certificate for his office from the head of institutions which impart instructions in Agamas and from the head of institutions which impart instructions in Agamas and ritualistic matters. The Government, however, it is submitted, may hereafter change its mind and prescribe qualifications which take no note of Agamas and Agamic rituals and direct that the Archaka candidate should produce a fitness certificate from an institution which does not specialize in teaching Agamas and rituals. It is submitted that the Act does not provide guidelines to the Government in the matter of prescribing qualifications with regard to the fitness of an Archaka for performing the rituals and ceremonies in these temples and it will be open to the Government to prescribe a simple standardized curriculum for pujas in the several temples ignoring the traditional pujas and rituals followed in those temples. In our opinion the apprehensions of the petitioners are unfounded. Rule 12 referred to above still holds the field and there is no good reason to think that the State Government wants to revolutionize temple worship by introducing methods of worship not current in the several temples. The rule-making power conferred on the Government by Section 116 is only intended with a view to carry out the purpose of the Act which are essentially secular. The Act nowhere gives the indication that one of the purposes of the Act is to effect a change in the rituals and ceremonies followed in the temples. On the other hand, Section 107 of the Principal Act emphasizes that nothing contained in the Act would be deemed to confer any power or impose any duty in contravention of the rights conferred on any religious denomination or any section thereof by Article 26 of the Constitution. Similarly, Section 105 provides that nothing contained in the Act shall (a) save as otherwise expressly provided in the Act or the rules made thereunder, affect any honour, emolument or perquisite to which any person is entitled by custom or otherwise in any religious institution, or its established usage in regard to any other matter. Moreover, if any rule is framed by the Government which purports to interfere with the rituals and ceremonies of the temples the same will be liable to be challenged by those who are interested in the temple worship. In our opinion, therefore, the apprehensions now expressed by the petitioners are groundless and premature.
| 0 | 8,559 | 3,100 |
### 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:
trustee is limited in respect of the sources of recruitment. Instead of casting his net wide for selecting a proper candidate, he appoints the next heir of the last holder of the office. That after his appointment the Archaka performs worship is no ground for holding that the appointment is either a religious practice or a matter of religion.22. In view of sub-section (2) of Section 55, as it now stands amended, the choice of the trustee in the matter of appointment of an Archaka is no longer limited by the operation of the rule of next-in-line of succession in temples where the usage was to appoint the Archaka on the hereditary principle. The trustee is not bound to make the appointment on the sole ground that the candidate, is the next-in-line of succession to the last holder of office. To that extent, and to that extent alone, the trustee is released from the obligation imposed on him by Section 28 of the principal Act to administer the affairs in accordance with that part of the usage of a temple which enjoined hereditary appointments. The legislation in this respect, as we have shown, does not interfere with any religious practice or matter of religion and, therefore, is not invalid.23. We shall now take separately the several amendments which were challenged as invalid. Section 2 of the Amendment Act amended Section 55 of the principal Act and the important change which was impugned on behalf of the petitioners related to the abolition of the hereditary principle in the appointment of the Archaka. We have shown for reasons already mentioned that the change effected by the Amendment is not invalid. The order changes effected in the other provisions of the principal Act appear to us to be merely consequential. Since the hereditary principle was done away with the words "whether the office or service is hereditary or not" found in Section 56 of the Principal Act have been omitted by Section 3 of the Amendment Act. By Section 4 of the letter Act clause (xxiii) of sub-section (2) in Section 116 is suitably amended with a view to deleting the reference to the qualifications of hereditary and non-hereditary offices which was there in clause (xxiii) of the principal Act. The change is only consequential on the amendment of Section 55 of the principal Act. Sections 5 and 6 of the Amendment Act are also consequential on the amendment of Sections 55 and 56. These are all the sections in the Amendment Act and in our view the Amendment Act as a whole must be regarded as valid.24. It was, however, submitted before us that the State had taken power under Section 116(2), clause (xxiii) to prescribe qualifications to be possessed by the Archakas and, in view of the avowed object of the State Government to create a class of Archakas irrespective of caste, creed or race, it would be open to the Government to prescribe qualifications for the office of an Archaka which were in conflict with Agamas. Under Rule 12 of the Madras Hindu Religious Institutions (Officers and Servants) Service Rules, 1964 proper provision has been made for qualifications of the Archakas and the petitioners have no objection to that rule. The rule still continues to be in force. But the petitioners apprehend that it is open to the Government to substitute any other rule for Rule 12 and prescribe qualifications which were in conflict with Agamic injunctions. For example at present the Ulthurai servant whose duty it is to perform pujas and recite vedic mantras etc, has to obtain the fitness certificate for his office from the head of institutions which impart instructions in Agamas and from the head of institutions which impart instructions in Agamas and ritualistic matters. The Government, however, it is submitted, may hereafter change its mind and prescribe qualifications which take no note of Agamas and Agamic rituals and direct that the Archaka candidate should produce a fitness certificate from an institution which does not specialize in teaching Agamas and rituals. It is submitted that the Act does not provide guidelines to the Government in the matter of prescribing qualifications with regard to the fitness of an Archaka for performing the rituals and ceremonies in these temples and it will be open to the Government to prescribe a simple standardized curriculum for pujas in the several temples ignoring the traditional pujas and rituals followed in those temples. In our opinion the apprehensions of the petitioners are unfounded. Rule 12 referred to above still holds the field and there is no good reason to think that the State Government wants to revolutionize temple worship by introducing methods of worship not current in the several temples. The rule-making power conferred on the Government by Section 116 is only intended with a view to carry out the purpose of the Act which are essentially secular. The Act nowhere gives the indication that one of the purposes of the Act is to effect a change in the rituals and ceremonies followed in the temples. On the other hand, Section 107 of the Principal Act emphasizes that nothing contained in the Act would be deemed to confer any power or impose any duty in contravention of the rights conferred on any religious denomination or any section thereof by Article 26 of the Constitution. Similarly, Section 105 provides that nothing contained in the Act shall (a) save as otherwise expressly provided in the Act or the rules made thereunder, affect any honour, emolument or perquisite to which any person is entitled by custom or otherwise in any religious institution, or its established usage in regard to any other matter. Moreover, if any rule is framed by the Government which purports to interfere with the rituals and ceremonies of the temples the same will be liable to be challenged by those who are interested in the temple worship. In our opinion, therefore, the apprehensions now expressed by the petitioners are groundless and premature.
### Response:
0
### Explanation:
function in choosing and appointing the Archaka. That the son of an Archaka or the sons son has been continued in the office from generation to generation does not make any difference to the principle of appointment and no such hereditary Archaka can claim any right to the office. See Kali Krishan Ray v. Makhan Lal Mookerjee (ILR 50 Cal 233.), Nanabhai Narotamdas v. Trimbak Balwant Bhandare ((1878-80) Vol. 4, Unreported printed), and Maharanee Indurjeet Kooer v. Chundemun Misser (XVI Weekly Reporter 99.). Thus the appointment of an Archaka is a secular act and the fact that in some temples the hereditary principle was followed in making the appointment would not make the successive appointments anything but secular. It would only mean that in making the appointment the trustee is limited in respect of the sources of recruitment. Instead of casting his net wide for selecting a proper candidate, he appoints the next heir of the last holder of the office. That after his appointment the Archaka performs worship is no ground for holding that the appointment is either a religious practice or a matter of religion.22. In view of sub-section (2) of Section 55, as it now stands amended, the choice of the trustee in the matter of appointment of an Archaka is no longer limited by the operation of the rule of next-in-line of succession in temples where the usage was to appoint the Archaka on the hereditary principle. The trustee is not bound to make the appointment on the sole ground that the candidate, is the next-in-line of succession to the last holder of office. To that extent, and to that extent alone, the trustee is released from the obligation imposed on him by Section 28 of the principal Act to administer the affairs in accordance with that part of the usage of a temple which enjoined hereditary appointments. The legislation in this respect, as we have shown, does not interfere with any religious practice or matter of religion and, therefore, is notSection 4 of the letter Act clause (xxiii) of sub-section (2) in Section 116 is suitably amended with a view to deleting the reference to the qualifications of hereditary and non-hereditary offices which was there in clause (xxiii) of the principal Act. The change is only consequential on the amendment of Section 55 of the principal Act. Sections 5 and 6 of the Amendment Act are also consequential on the amendment of Sections 55 and 56. These are all the sections in the Amendment Act and in our view the Amendment Act as a whole must be regarded as valid.24. It was, however, submitted before us that the State had taken power under Section 116(2), clause (xxiii) to prescribe qualifications to be possessed by the Archakas and, in view of the avowed object of the State Government to create a class of Archakas irrespective of caste, creed or race, it would be open to the Government to prescribe qualifications for the office of an Archaka which were in conflict with Agamas. Under Rule 12 of the Madras Hindu Religious Institutions (Officers and Servants) Service Rules, 1964 proper provision has been made for qualifications of the Archakas and the petitioners have no objection to that rule. The rule still continues to be in force. But the petitioners apprehend that it is open to the Government to substitute any other rule for Rule 12 and prescribe qualifications which were in conflict with Agamic injunctions. For example at present the Ulthurai servant whose duty it is to perform pujas and recite vedic mantras etc, has to obtain the fitness certificate for his office from the head of institutions which impart instructions in Agamas and from the head of institutions which impart instructions in Agamas and ritualistic matters. The Government, however, it is submitted, may hereafter change its mind and prescribe qualifications which take no note of Agamas and Agamic rituals and direct that the Archaka candidate should produce a fitness certificate from an institution which does not specialize in teaching Agamas and rituals. It is submitted that the Act does not provide guidelines to the Government in the matter of prescribing qualifications with regard to the fitness of an Archaka for performing the rituals and ceremonies in these temples and it will be open to the Government to prescribe a simple standardized curriculum for pujas in the several temples ignoring the traditional pujas and rituals followed in those temples. In our opinion the apprehensions of the petitioners are unfounded. Rule 12 referred to above still holds the field and there is no good reason to think that the State Government wants to revolutionize temple worship by introducing methods of worship not current in the several temples. The rule-making power conferred on the Government by Section 116 is only intended with a view to carry out the purpose of the Act which are essentially secular. The Act nowhere gives the indication that one of the purposes of the Act is to effect a change in the rituals and ceremonies followed in the temples. On the other hand, Section 107 of the Principal Act emphasizes that nothing contained in the Act would be deemed to confer any power or impose any duty in contravention of the rights conferred on any religious denomination or any section thereof by Article 26 of the Constitution. Similarly, Section 105 provides that nothing contained in the Act shall (a) save as otherwise expressly provided in the Act or the rules made thereunder, affect any honour, emolument or perquisite to which any person is entitled by custom or otherwise in any religious institution, or its established usage in regard to any other matter. Moreover, if any rule is framed by the Government which purports to interfere with the rituals and ceremonies of the temples the same will be liable to be challenged by those who are interested in the temple worship. In our opinion, therefore, the apprehensions now expressed by the petitioners are groundless and premature.
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Tirlok Singh and Co Vs. District Magistrate, Lucknow and Ors
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provides for an appeal against an order of allotment or release says that any person aggrieved by an order of allotment or release passed under section 16 may prefer an appeal to the District Judge. If the order o f allotment or release is varied or rescinded by the District Judge, the District Magistrate under section 18(2) has the power to place the parties back in the position which they would have occupied but for such order.A study of these provisions shows the untenability of the appellants contention as regards the illegality of the order passed by respondent. 1. Chapter III of the U.P. Rent Act casts an obligation both on the landlord and the tenant to intimate a vacancy to the District Magistrate. A vacancy is to be deemed to have occurred in the circumstances specified in section 12. On the intimation of a vacancy or otherwise, the District Magistrate may under section 16 pass either an order allotting the premises to a person specified by him or he can release the vacancy in favour of the landlord on being satisfied that he requires the premises for the purposes mentioned in section 16(2). The Act does not provide for a hearing at the stage when the District Magistrate passes an order of allotment or release. But any person aggrieved by such an order is entitled under section 16(5)(a) to ask the District Magistrate to review his order. If, in the meanwhile, any person in possession of the premises has been evicted the District Magistrate has the power, if he sets aside or modifies the order of allotment or release, to put the applicant back in possession. Further, an order passed under section 16 is appealable under section 18 which means that a person aggrieved by an order of allotment or release has at a least a two-fold opportunity to challenge an order affecting his interest.7. The order dated May 20, 1974 passed by respondent 1 to the effect "Let the vacancy be notified" is not by itself and without more calculated to injure or effect the appellants interest. As a sequel to that order and after the High Court rejected the appellants writ petition, respondent 1 served a notice on the appellants stating that the proceeding would be taken up for hearing on May 19, 1975. The release order was eventually passed on May 21 after hearing the appellants and they have filed an appeal against that order before the District Judge who is entitled to examine the legality and propriety of the order.Thus, in the first place, it was unnecessary for respondent 1 to hear the appellants before notifying the vacancy because under the scheme of the U.P. Rent Act, an order notifying the vacancy does no injury and causes no prejudice to the interests of any party. A notification of the vacancy is a step-in-aid of an order of allotment or release and it is only when such an order of allotment or release is passed that the landlord or the tenant, as the case may be, can have a grievance. Orders of allotment and release are, in the first instance, reviewable by the District Magistrate himself and an order passed by the District Magistrate under section 16 is appealable under section 18.8. A reference to the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 would be relevant and useful in this behalf. Rule 8(1) called "Ascertainment of Vacancy" enjoins the District Magistrate, before making an order of allotment or release in respect of any building which is alleged to be vacant, to obtain a report from the Rent Control Inspector. Under rule 8(2), the Inspector is required to inspect the building as far a s possible in the presence of the parties and submit the report to the District Magistrate after eliciting the necessary facts. Rule 8(2) requires that the conclusion contained in the Inspectors report must be posted on the Notice Boa rd of the District Magistrates office for the information of the general public. This is what is meant by "notifying the vacancy" and this explains the order passed by the District Magistrate: "Let the vacancy be notified". The existence of the vacancy, by being displayed on the District Magistrates notice board, is notified to the general public in order that persons interested in the allotment of the vacancy may apply to the District Magistrate in that behalf. Under Rule 8(2), an order of allotment can be passed not before the expiration of 3 days from the date on which the vacancy is notified and if in the meantime any objection is received, not before the disposal of such objection. Under rule 8(3), all objection to the notification of the vacancy has to be decided after considering any evidence that the objector or any other person may adduce. The Act thus contemplates successive opportunities being afforded to persons whose interests are likely to be affected by any order passed by the District Magistrate. Putting it briefly, an order notifying the vacancy can be objected to and the objection has to be decided after considering the evidence that the objector or any other person concerned may adduce. Secondly, if an order of allotment or release is passed under section 16, following upon the notification of a vacancy, the aggrieved person can file a review application. Thirdly, as against an order passed under section 16 , there is a right of appeal under section 18.9. The High Court was therefore right in expressing the view that the appellants writ petition was premature. The writ petition was premature in the sense that the order impugned thereby did not affect the appellants interest in the particular premises. The appellants have since filed an appeal against the order of release to the District Judge and that appeal is pending. That is the proper forum for adjudicating on the rival claims o f the appellants on one hand and respondents 2 and 3 on the other.10.
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0[ds]The existence of the vacancy, by being displayed on the District Magistrates notice board, is notified to the general public in order that persons interested in the allotment of the vacancy may apply to the District Magistrate in that behalf. Under Rule 8(2), an order of allotment can be passed not before the expiration of 3 days from the date on which the vacancy is notified and if in the meantime any objection is received, not before the disposal of such objection. Under rule 8(3), all objection to the notification of the vacancy has to be decided after considering any evidence that the objector or any other person may adduce. The Act thus contemplates successive opportunities being afforded to persons whose interests are likely to be affected by any order passed by the District Magistrate. Putting it briefly, an order notifying the vacancy can be objected to and the objection has to be decided after considering the evidence that the objector or any other person concerned may adduce. Secondly, if an order of allotment or release is passed under section 16, following upon the notification of a vacancy, the aggrieved person can file a review application. Thirdly, as against an order passed under section 16 , there is a right of appeal under sectionHigh Court was therefore right in expressing the view that the appellants writ petition was premature. The writ petition was premature in the sense that the order impugned thereby did not affect the appellants interest in the particular premises. The appellants have since filed an appeal against the order of release to the District Judge and that appeal is pending. That is the proper forum for adjudicating on the rival claims o f the appellants on one hand and respondents 2 and 3 on the other.
| 0 | 2,091 | 329 |
### 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:
provides for an appeal against an order of allotment or release says that any person aggrieved by an order of allotment or release passed under section 16 may prefer an appeal to the District Judge. If the order o f allotment or release is varied or rescinded by the District Judge, the District Magistrate under section 18(2) has the power to place the parties back in the position which they would have occupied but for such order.A study of these provisions shows the untenability of the appellants contention as regards the illegality of the order passed by respondent. 1. Chapter III of the U.P. Rent Act casts an obligation both on the landlord and the tenant to intimate a vacancy to the District Magistrate. A vacancy is to be deemed to have occurred in the circumstances specified in section 12. On the intimation of a vacancy or otherwise, the District Magistrate may under section 16 pass either an order allotting the premises to a person specified by him or he can release the vacancy in favour of the landlord on being satisfied that he requires the premises for the purposes mentioned in section 16(2). The Act does not provide for a hearing at the stage when the District Magistrate passes an order of allotment or release. But any person aggrieved by such an order is entitled under section 16(5)(a) to ask the District Magistrate to review his order. If, in the meanwhile, any person in possession of the premises has been evicted the District Magistrate has the power, if he sets aside or modifies the order of allotment or release, to put the applicant back in possession. Further, an order passed under section 16 is appealable under section 18 which means that a person aggrieved by an order of allotment or release has at a least a two-fold opportunity to challenge an order affecting his interest.7. The order dated May 20, 1974 passed by respondent 1 to the effect "Let the vacancy be notified" is not by itself and without more calculated to injure or effect the appellants interest. As a sequel to that order and after the High Court rejected the appellants writ petition, respondent 1 served a notice on the appellants stating that the proceeding would be taken up for hearing on May 19, 1975. The release order was eventually passed on May 21 after hearing the appellants and they have filed an appeal against that order before the District Judge who is entitled to examine the legality and propriety of the order.Thus, in the first place, it was unnecessary for respondent 1 to hear the appellants before notifying the vacancy because under the scheme of the U.P. Rent Act, an order notifying the vacancy does no injury and causes no prejudice to the interests of any party. A notification of the vacancy is a step-in-aid of an order of allotment or release and it is only when such an order of allotment or release is passed that the landlord or the tenant, as the case may be, can have a grievance. Orders of allotment and release are, in the first instance, reviewable by the District Magistrate himself and an order passed by the District Magistrate under section 16 is appealable under section 18.8. A reference to the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 would be relevant and useful in this behalf. Rule 8(1) called "Ascertainment of Vacancy" enjoins the District Magistrate, before making an order of allotment or release in respect of any building which is alleged to be vacant, to obtain a report from the Rent Control Inspector. Under rule 8(2), the Inspector is required to inspect the building as far a s possible in the presence of the parties and submit the report to the District Magistrate after eliciting the necessary facts. Rule 8(2) requires that the conclusion contained in the Inspectors report must be posted on the Notice Boa rd of the District Magistrates office for the information of the general public. This is what is meant by "notifying the vacancy" and this explains the order passed by the District Magistrate: "Let the vacancy be notified". The existence of the vacancy, by being displayed on the District Magistrates notice board, is notified to the general public in order that persons interested in the allotment of the vacancy may apply to the District Magistrate in that behalf. Under Rule 8(2), an order of allotment can be passed not before the expiration of 3 days from the date on which the vacancy is notified and if in the meantime any objection is received, not before the disposal of such objection. Under rule 8(3), all objection to the notification of the vacancy has to be decided after considering any evidence that the objector or any other person may adduce. The Act thus contemplates successive opportunities being afforded to persons whose interests are likely to be affected by any order passed by the District Magistrate. Putting it briefly, an order notifying the vacancy can be objected to and the objection has to be decided after considering the evidence that the objector or any other person concerned may adduce. Secondly, if an order of allotment or release is passed under section 16, following upon the notification of a vacancy, the aggrieved person can file a review application. Thirdly, as against an order passed under section 16 , there is a right of appeal under section 18.9. The High Court was therefore right in expressing the view that the appellants writ petition was premature. The writ petition was premature in the sense that the order impugned thereby did not affect the appellants interest in the particular premises. The appellants have since filed an appeal against the order of release to the District Judge and that appeal is pending. That is the proper forum for adjudicating on the rival claims o f the appellants on one hand and respondents 2 and 3 on the other.10.
### Response:
0
### Explanation:
The existence of the vacancy, by being displayed on the District Magistrates notice board, is notified to the general public in order that persons interested in the allotment of the vacancy may apply to the District Magistrate in that behalf. Under Rule 8(2), an order of allotment can be passed not before the expiration of 3 days from the date on which the vacancy is notified and if in the meantime any objection is received, not before the disposal of such objection. Under rule 8(3), all objection to the notification of the vacancy has to be decided after considering any evidence that the objector or any other person may adduce. The Act thus contemplates successive opportunities being afforded to persons whose interests are likely to be affected by any order passed by the District Magistrate. Putting it briefly, an order notifying the vacancy can be objected to and the objection has to be decided after considering the evidence that the objector or any other person concerned may adduce. Secondly, if an order of allotment or release is passed under section 16, following upon the notification of a vacancy, the aggrieved person can file a review application. Thirdly, as against an order passed under section 16 , there is a right of appeal under sectionHigh Court was therefore right in expressing the view that the appellants writ petition was premature. The writ petition was premature in the sense that the order impugned thereby did not affect the appellants interest in the particular premises. The appellants have since filed an appeal against the order of release to the District Judge and that appeal is pending. That is the proper forum for adjudicating on the rival claims o f the appellants on one hand and respondents 2 and 3 on the other.
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Hec Voluntary Retd.Emps.Welfare Soc.&Anr Vs. Heavy Engineering Corporation Ltd.
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seen that the distinction has been drawn between employees who retired voluntarily under rule 24.2 of the Conduct, Discipline and Appeal rules or the employees who retied under the Special Scheme operating from time to time. The respondents having retired under the Special Scheme are not employees covered under the Special Scheme are not employees covered under the voluntary retirement under Rule 24.2 of the Conduct, Discipline and Appeal Rules referred to hereinbefore. 28. The expression Special Scheme used therein must be understood in the context of a general Scheme of employment governing the terms and conditions of service or which is a part of the statutory rules governing the service of the employees. In this sense also the Voluntary Retirement Scheme is a Special Scheme. The scheme was initially introduced for one year. It might have been extended from time to time. Extension of such scheme indisputably must have been on the basis of exercises resorted to by the employer as regards the financial implications thereof, availability of fund, average number of employees opting therefor and other relevant factors. Only because the said scheme remained in force for a total period of 10 years, the same would not mean that it became a part of the general terms and conditions of contract of employment. Furthermore evidently as the scheme floated in 1987 did not work to the satisfaction of the Company, it was replaced by the year 1990 scheme upon extending more benefits to the employees. 29. State Bank of India vs. A.N. Gupta & Ors. [(1997) 8 SCC 60] whereupon Mr. Upadhayay placed strong reliance, departmental proceeding could be initiated in terms of the pension rules. It is in that context this Court held: It cannot be said that an employee retires only on superannuation and there is no other circumstance under which an employee can retire. Retirement on superannuation is not the only mode of retirement known to service jurisprudence. There can be other types of retirements like premature retirement, either compulsory or voluntary. It would be in the case of a premature retirement or any other contingency when an employee leaves the service of the Bank before he superannuates, Rule 11 would become applicable. Retirement on superannuation is automatic as per Rule 26 of the Service Rules. No further action on the part of the Executive Committee of the Central Board of the Bank would be required in such a case and rule 11 will not be applicable. 30. The said has no application in the present case. 31. It has not been suggested that voluntary retirement, in absence of any express statutory rule governing the filed, would bring about a case of superannuation. In V. Kasturi (supra) a new Rule was introduced providing for pension of an employee after retirement on completion of 20 years of service, provided he requested in writing therefor. The questions which fall for consideration therein was that if a person was eligible for pension at the time of his retirement and if he survives till the time of subsequent amendment of the relevant pension scheme, whether he would become entitled to enhanced pension or would become eligible to get more pension as per the new formula of computation of pension. In the fact situation obtaining therein, it was held that employees could be divided in two categories, i.e., those who were eligible for pension at the time of his retirement and those who were not. Whereas in the case of first category the benefit of the amended provisions would be applicable, but in the second it would not. V. Kasturi (supra) also, thus, in our opinion, is not applicable to the fact of the present case. 32. It may be true that the Central government interpreted the provision differently, but in the absence of any statutory provision the same is not binding upon the respondent. It is of some interest to note that the Central Government opined that the Company itself has to bear the burnt of additional burden which on all probabilities was an impossible task. 33. Our attention has not been drawn to the provision of any statute that even in its day to day functioning the Company would be bound by any direction issued by the Central Government. It may be that the respondent is a Government Company within the meaning of Section 617 of the Companies Act. It may be that entire shareholding of the Company is held by the the President of India or his nominee but in law it is a separate juristic entity and, thus, in absence of any statutory provision, the Company was not bound by any such clarification issued by the Central Government. Even where a statute confers such a jurisdiction on the Central Government, the same must be held to be confined only to the provisions contained therein. [See State of U.P. vs. Neeraj Awasthi & Ors. (2006) 1 SCC 667 ] 34. Although either before the High Court or before us no submissions were made relying on or on the basis of office memorandum dated 5th May, 2000, a copy whereof has been annexed only with the written submissions. We are, however, of the opinion that the same would not advance the case of the appellants for more than one reason. Firstly, the said office memorandum dated 5th May, 2000 cannot be considered by us as the same had been filed for the first time with the written submissions. No opportunity therefor had been given to the respondents to respond thereto. Secondly, the same is a general circular whereas the circular letter dated 24th May, 1993 issued by the Union of India deals with the particular problem wherein it has categorically been stated that the Central Government shall nor undertake the financial responsibility therefor. In any event, the said letter refers to the schemes which might have come into force after 2000. It evidently, does not refer to the 1987 Scheme vis-Ã -vis the revision of the pay scales.
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0[ds]20. We have indicated hereinbefore that before floating such a scheme both the employer as also the employee take into account financial implications in relation thereto. When an invitation to offer is floated by reason of such a scheme, the employer must have carried out exercises as regard the financial implication thereof. If a large number of employees opt therefor, having regard to the financial constraints an employer may not accept offers of a number of employees and may confine the same to only a section of optees. Similarly when an employer accepts the recommendations of a Pay Revision Committee, having regard to the financial implications thereof it may accept or reject the whole or a part of it. The question of inclusion of employees who form a special class by themselves, would, thus, depend upon the object and purport thereof. The appellants herein do not fall either in clauses 3.2 or 3.3 expressly. They would be treated to be included in clause 3.2, provided they are considered at par with superannuated employee. They would be excluded if they are treated to be discharged employee21. We have noticed that admittedly thousands of employees had opted for voluntary retirement during the period in question. They indisputably form a distinct and different class. Having given our anxious consideration thereto, we are of the opinion that neither they are discharged employees nor are superannuated employees. The expression superannuation connotes a distinct meaning. It ordinarily means, unless otherwise provided for in the statute, that not only he reaches the age of superannuation prescribed therefor, but also becomes entitled to the retiral benefits thereof including pension. Voluntary retirement could have fallen within theexpression, provided it was so stated expressly in the scheme22. Financial considerations are, thus, a relevant factor both for floating a scheme of voluntary retirement as well as for revision of pay. Those employees who opted for voluntary retirement, make a planning for the future. At the time of giving option, they know where they stand. At that point of time they did not anticipate that they would get the benefit of revision in the scales of pay. They prepared themselves to contract out of the jural relationship by resorting to golden handshake. They are bound by there own act. The parties are bound by the terms of contract of voluntary retirement. We have noticed hereinbefore that unless a statute or statutory provision interdict, the relationship between the parties to act pursuant to or in furtherance of the voluntary retirement scheme, is governed by contract. By such contract, they can opt out for such other terms and conditions as may be agreed upon. In this case the terms and conditions of the contract are not governed by a statute or statutory rules26. Considering the matter from that context, we are of the opinion that it cannot be said that the Company intended to extend the said benefits to those who had opted for voluntary retirement. Clause 3.2 of the circular includes only those who were on the rolls of the Corporation as on 1.1.1992, as also those who ceased to be in service on that date on account of superannuation or death. The appellants do not come in the said category. In view of the fact that they have not been expressly included within the purview thereof, we are of the opinion that although they have not been excluded by clause 3.3, they would be deemed to be automatically excluded28. The expression Special Scheme used therein must be understood in the context of a general Scheme of employment governing the terms and conditions of service or which is a part of the statutory rules governing the service of the employees. In this sense also the Voluntary Retirement Scheme is a Special Scheme. The scheme was initially introduced for one year. It might have been extended from time to time. Extension of such scheme indisputably must have been on the basis of exercises resorted to by the employer as regards the financial implications thereof, availability of fund, average number of employees opting therefor and other relevant factors. Only because the said scheme remained in force for a total period of 10 years, the same would not mean that it became a part of the general terms and conditions of contract of employment. Furthermore evidently as the scheme floated in 1987 did not work to the satisfaction of the Company, it was replaced by the year 1990 scheme upon extending more benefits to the employees31. It has not been suggested that voluntary retirement, in absence of any express statutory rule governing the filed, would bring about a case of superannuation. In V. Kasturi (supra) a new Rule was introduced providing for pension of an employee after retirement on completion of 20 years of service, provided he requested in writing therefor. The questions which fall for consideration therein was that if a person was eligible for pension at the time of his retirement and if he survives till the time of subsequent amendment of the relevant pension scheme, whether he would become entitled to enhanced pension or would become eligible to get more pension as per the new formula of computation of pension. In the fact situation obtaining therein, it was held that employees could be divided in two categories, i.e., those who were eligible for pension at the time of his retirement and those who were not. Whereas in the case of first category the benefit of the amended provisions would be applicable, but in the second it would not. V. Kasturi (supra) also, thus, in our opinion, is not applicable to the fact of the present case32. It may be true that the Central government interpreted the provision differently, but in the absence of any statutory provision the same is not binding upon the respondent. It is of some interest to note that the Central Government opined that the Company itself has to bear the burnt of additional burden which on all probabilities was an impossible task33. Our attention has not been drawn to the provision of any statute that even in its day to day functioning the Company would be bound by any direction issued by the Central Government. It may be that the respondent is a Government Company within the meaning of Section 617 of the Companies Act. It may be that entire shareholding of the Company is held by the the President of India or his nominee but in law it is a separate juristic entity and, thus, in absence of any statutory provision, the Company was not bound by any such clarification issued by the Central Government. Even where a statute confers such a jurisdiction on the Central Government, the same must be held to be confined only to the provisions contained therein. [See State of U.P. vs. Neeraj Awasthi & Ors. (2006) 1 SCC 667 ]34. Although either before the High Court or before us no submissions were made relying on or on the basis of office memorandum dated 5th May, 2000, a copy whereof has been annexed only with the written submissions. We are, however, of the opinion that the same would not advance the case of the appellants for more than one reason. Firstly, the said office memorandum dated 5th May, 2000 cannot be considered by us as the same had been filed for the first time with the written submissions. No opportunity therefor had been given to the respondents to respond thereto. Secondly, the same is a general circular whereas the circular letter dated 24th May, 1993 issued by the Union of India deals with the particular problem wherein it has categorically been stated that the Central Government shall nor undertake the financial responsibility therefor. In any event, the said letter refers to the schemes which might have come into force after 2000. It evidently, does not refer to the 1987 Schemevis the revision of the pay scales.
| 0 | 4,712 | 1,447 |
### 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:
seen that the distinction has been drawn between employees who retired voluntarily under rule 24.2 of the Conduct, Discipline and Appeal rules or the employees who retied under the Special Scheme operating from time to time. The respondents having retired under the Special Scheme are not employees covered under the Special Scheme are not employees covered under the voluntary retirement under Rule 24.2 of the Conduct, Discipline and Appeal Rules referred to hereinbefore. 28. The expression Special Scheme used therein must be understood in the context of a general Scheme of employment governing the terms and conditions of service or which is a part of the statutory rules governing the service of the employees. In this sense also the Voluntary Retirement Scheme is a Special Scheme. The scheme was initially introduced for one year. It might have been extended from time to time. Extension of such scheme indisputably must have been on the basis of exercises resorted to by the employer as regards the financial implications thereof, availability of fund, average number of employees opting therefor and other relevant factors. Only because the said scheme remained in force for a total period of 10 years, the same would not mean that it became a part of the general terms and conditions of contract of employment. Furthermore evidently as the scheme floated in 1987 did not work to the satisfaction of the Company, it was replaced by the year 1990 scheme upon extending more benefits to the employees. 29. State Bank of India vs. A.N. Gupta & Ors. [(1997) 8 SCC 60] whereupon Mr. Upadhayay placed strong reliance, departmental proceeding could be initiated in terms of the pension rules. It is in that context this Court held: It cannot be said that an employee retires only on superannuation and there is no other circumstance under which an employee can retire. Retirement on superannuation is not the only mode of retirement known to service jurisprudence. There can be other types of retirements like premature retirement, either compulsory or voluntary. It would be in the case of a premature retirement or any other contingency when an employee leaves the service of the Bank before he superannuates, Rule 11 would become applicable. Retirement on superannuation is automatic as per Rule 26 of the Service Rules. No further action on the part of the Executive Committee of the Central Board of the Bank would be required in such a case and rule 11 will not be applicable. 30. The said has no application in the present case. 31. It has not been suggested that voluntary retirement, in absence of any express statutory rule governing the filed, would bring about a case of superannuation. In V. Kasturi (supra) a new Rule was introduced providing for pension of an employee after retirement on completion of 20 years of service, provided he requested in writing therefor. The questions which fall for consideration therein was that if a person was eligible for pension at the time of his retirement and if he survives till the time of subsequent amendment of the relevant pension scheme, whether he would become entitled to enhanced pension or would become eligible to get more pension as per the new formula of computation of pension. In the fact situation obtaining therein, it was held that employees could be divided in two categories, i.e., those who were eligible for pension at the time of his retirement and those who were not. Whereas in the case of first category the benefit of the amended provisions would be applicable, but in the second it would not. V. Kasturi (supra) also, thus, in our opinion, is not applicable to the fact of the present case. 32. It may be true that the Central government interpreted the provision differently, but in the absence of any statutory provision the same is not binding upon the respondent. It is of some interest to note that the Central Government opined that the Company itself has to bear the burnt of additional burden which on all probabilities was an impossible task. 33. Our attention has not been drawn to the provision of any statute that even in its day to day functioning the Company would be bound by any direction issued by the Central Government. It may be that the respondent is a Government Company within the meaning of Section 617 of the Companies Act. It may be that entire shareholding of the Company is held by the the President of India or his nominee but in law it is a separate juristic entity and, thus, in absence of any statutory provision, the Company was not bound by any such clarification issued by the Central Government. Even where a statute confers such a jurisdiction on the Central Government, the same must be held to be confined only to the provisions contained therein. [See State of U.P. vs. Neeraj Awasthi & Ors. (2006) 1 SCC 667 ] 34. Although either before the High Court or before us no submissions were made relying on or on the basis of office memorandum dated 5th May, 2000, a copy whereof has been annexed only with the written submissions. We are, however, of the opinion that the same would not advance the case of the appellants for more than one reason. Firstly, the said office memorandum dated 5th May, 2000 cannot be considered by us as the same had been filed for the first time with the written submissions. No opportunity therefor had been given to the respondents to respond thereto. Secondly, the same is a general circular whereas the circular letter dated 24th May, 1993 issued by the Union of India deals with the particular problem wherein it has categorically been stated that the Central Government shall nor undertake the financial responsibility therefor. In any event, the said letter refers to the schemes which might have come into force after 2000. It evidently, does not refer to the 1987 Scheme vis-Ã -vis the revision of the pay scales.
### Response:
0
### Explanation:
At the time of giving option, they know where they stand. At that point of time they did not anticipate that they would get the benefit of revision in the scales of pay. They prepared themselves to contract out of the jural relationship by resorting to golden handshake. They are bound by there own act. The parties are bound by the terms of contract of voluntary retirement. We have noticed hereinbefore that unless a statute or statutory provision interdict, the relationship between the parties to act pursuant to or in furtherance of the voluntary retirement scheme, is governed by contract. By such contract, they can opt out for such other terms and conditions as may be agreed upon. In this case the terms and conditions of the contract are not governed by a statute or statutory rules26. Considering the matter from that context, we are of the opinion that it cannot be said that the Company intended to extend the said benefits to those who had opted for voluntary retirement. Clause 3.2 of the circular includes only those who were on the rolls of the Corporation as on 1.1.1992, as also those who ceased to be in service on that date on account of superannuation or death. The appellants do not come in the said category. In view of the fact that they have not been expressly included within the purview thereof, we are of the opinion that although they have not been excluded by clause 3.3, they would be deemed to be automatically excluded28. The expression Special Scheme used therein must be understood in the context of a general Scheme of employment governing the terms and conditions of service or which is a part of the statutory rules governing the service of the employees. In this sense also the Voluntary Retirement Scheme is a Special Scheme. The scheme was initially introduced for one year. It might have been extended from time to time. Extension of such scheme indisputably must have been on the basis of exercises resorted to by the employer as regards the financial implications thereof, availability of fund, average number of employees opting therefor and other relevant factors. Only because the said scheme remained in force for a total period of 10 years, the same would not mean that it became a part of the general terms and conditions of contract of employment. Furthermore evidently as the scheme floated in 1987 did not work to the satisfaction of the Company, it was replaced by the year 1990 scheme upon extending more benefits to the employees31. It has not been suggested that voluntary retirement, in absence of any express statutory rule governing the filed, would bring about a case of superannuation. In V. Kasturi (supra) a new Rule was introduced providing for pension of an employee after retirement on completion of 20 years of service, provided he requested in writing therefor. The questions which fall for consideration therein was that if a person was eligible for pension at the time of his retirement and if he survives till the time of subsequent amendment of the relevant pension scheme, whether he would become entitled to enhanced pension or would become eligible to get more pension as per the new formula of computation of pension. In the fact situation obtaining therein, it was held that employees could be divided in two categories, i.e., those who were eligible for pension at the time of his retirement and those who were not. Whereas in the case of first category the benefit of the amended provisions would be applicable, but in the second it would not. V. Kasturi (supra) also, thus, in our opinion, is not applicable to the fact of the present case32. It may be true that the Central government interpreted the provision differently, but in the absence of any statutory provision the same is not binding upon the respondent. It is of some interest to note that the Central Government opined that the Company itself has to bear the burnt of additional burden which on all probabilities was an impossible task33. Our attention has not been drawn to the provision of any statute that even in its day to day functioning the Company would be bound by any direction issued by the Central Government. It may be that the respondent is a Government Company within the meaning of Section 617 of the Companies Act. It may be that entire shareholding of the Company is held by the the President of India or his nominee but in law it is a separate juristic entity and, thus, in absence of any statutory provision, the Company was not bound by any such clarification issued by the Central Government. Even where a statute confers such a jurisdiction on the Central Government, the same must be held to be confined only to the provisions contained therein. [See State of U.P. vs. Neeraj Awasthi & Ors. (2006) 1 SCC 667 ]34. Although either before the High Court or before us no submissions were made relying on or on the basis of office memorandum dated 5th May, 2000, a copy whereof has been annexed only with the written submissions. We are, however, of the opinion that the same would not advance the case of the appellants for more than one reason. Firstly, the said office memorandum dated 5th May, 2000 cannot be considered by us as the same had been filed for the first time with the written submissions. No opportunity therefor had been given to the respondents to respond thereto. Secondly, the same is a general circular whereas the circular letter dated 24th May, 1993 issued by the Union of India deals with the particular problem wherein it has categorically been stated that the Central Government shall nor undertake the financial responsibility therefor. In any event, the said letter refers to the schemes which might have come into force after 2000. It evidently, does not refer to the 1987 Schemevis the revision of the pay scales.
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State Of Assam & Anr Vs. S. N. Sen & Anr
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x x x x x x Article 234 - Appointments of persons other than District Judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. Article 235. - The control over District Courts and Courts subordinate thereto including the posting and promotion of, and the grant of leave to persons belonging to the judicial service of a State and holding any post inferior to the post of district Judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law. 9. As already indicated the respondent Sen was appointed to act as Additional Sub-Judge, Cachar and he took charge on December 22, 1961. The High Court of Assam and Nagaland confirmed his appointment in the Judicial Service (Junior) Grade I, with effect from March 1, 1964. 10. Rule 5 (iv), on the basis of which objection was raised by the Accountant General, is as follows: 5. Appointment, probation and confirmation - (iv) when a person is appointed to a permanent post, he will be confirmed in his appointment at the end of the period of probation or extended period of probation. In case of the Deputy Registrar and Assistant Registrar of the High Court confirmation shall made by the High Court. In order cases it will be made by the Governor in consultation with the High Court. 11. Dealing with it, Mehrotra, C. J., observed as follows: It will be anomalous to hold that power of promotion posting vests in the High Court while the power of confirming an Officer in the post vests in the Government. With regard to the Scheme of the Constitution and the Rules, it is clear that Rule 5 (iv) applies to the persons who are appointed by direct recruitment to the post of sub-Judge and not to the persons who have been promoted. In any opinion, therefore, the power to confirm the judicial officers who have been promoted vests in the High Court. 12. On the other hand, S. K. Dutta J., was of the view. In this connection it is not necessary to examine Rule 5 (iv) of the Assam Judicial Service (Junior) Rules. 1954, on which the State of Assam and the Accountant General, Assam rely in their contention that the Subordinate Judge can be confirmed in his post only by the Government. If the Rule is in conflict with any constitutional provision, it will be void and must be struck down. 13. Under the provisions of the Constitution itself the power of promotion of persons holding posts inferior to that of the District Judge is in the High Court. It stands to reason that the power to confirm such promotions should also be in the High Court. 14. This Court has no several occasions expressed its view on Article 235 of the Constitution. In State of West Bengal v. Nripendra Nath Bagchi, (1966) 1 SCR 771 = (AIR 1966 SC 447 ) it was pointed out: In the case of the Judicial Service subordinate to the District Judge the appointment has to be made by the Governor in accordance with the rules to be framed after consultation with the State Public Service Commission and the High Court but the power of posting, promotion and grant of leave and the control of the Courts are vested in the High Court. 15. A year later, in State of Assam v. Ranga Mahammed, (1967) 1 SCR 454 = (AIR 1967 SC 903 ) this Court again observed as follows: The High Court is in the day to day control of Courts and knows the capacity for work of individuals and the requirements of a particular station or Court. The High Court is better suited to make transfers than a Minister. For however well-meaning a Minister may be he can never possess the same intimate knowledge of the working of the Judiciary as a whole and of individual Judges, as the High Court. He must depend on his department for information. The Chief Justice and his colleagues know these matters and deal with them personally. There is less chance of being influenced by secretaries who may withhold some vital information if they are interested themselves. It is also well known that all stations are not similar in climate and education, medical and other facilities. Some are good stations and some are not so good. There is less chance of success for a person seeking advantage for himself if the Chief Justice and his colleagues with personal information, deal with the matter than when a Minister deals with it on notes and information supplied by a secretary. 16. This observation was made in relation to a case of transfer, but it applies with greater force to the case of promotion. The result is that we hold that the power of promotion of persons holding posts inferior to that of the District Judge being in the High Court, the power to confirm such promotion is also in the High Court. We also hold that insofar as Rule 5 (iv) is in conflict with Article 235 of the Constitution, it must be held to be invalid. 17. On the basis of the last part of Article 235, an argument was purported to be advanced that the power of the High Court as to promotions was limited. In view of the plain words of the first part of this article, this argument has no basis. 18. In this Court, no other point was made in support of this appeal. 19.
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0[ds]This observation was made in relation to a case of transfer, but it applies with greater force to the case of promotion. The result is that we hold that the power of promotion of persons holding posts inferior to that of the District Judge being in the High Court, the power to confirm such promotion is also in the High Court. We also hold that insofar as Rule 5 (iv) is in conflict with Article 235 of the Constitution, it must be held to be invalidOn the basis of the last part of Article 235, an argument was purported to be advanced that the power of the High Court as to promotions was limited. In view of the plain words of the first part of this article, this argument has no basisIn this Court, no other point was made in support of this appeal.
| 0 | 1,786 | 160 |
### 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:
x x x x x x Article 234 - Appointments of persons other than District Judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. Article 235. - The control over District Courts and Courts subordinate thereto including the posting and promotion of, and the grant of leave to persons belonging to the judicial service of a State and holding any post inferior to the post of district Judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law. 9. As already indicated the respondent Sen was appointed to act as Additional Sub-Judge, Cachar and he took charge on December 22, 1961. The High Court of Assam and Nagaland confirmed his appointment in the Judicial Service (Junior) Grade I, with effect from March 1, 1964. 10. Rule 5 (iv), on the basis of which objection was raised by the Accountant General, is as follows: 5. Appointment, probation and confirmation - (iv) when a person is appointed to a permanent post, he will be confirmed in his appointment at the end of the period of probation or extended period of probation. In case of the Deputy Registrar and Assistant Registrar of the High Court confirmation shall made by the High Court. In order cases it will be made by the Governor in consultation with the High Court. 11. Dealing with it, Mehrotra, C. J., observed as follows: It will be anomalous to hold that power of promotion posting vests in the High Court while the power of confirming an Officer in the post vests in the Government. With regard to the Scheme of the Constitution and the Rules, it is clear that Rule 5 (iv) applies to the persons who are appointed by direct recruitment to the post of sub-Judge and not to the persons who have been promoted. In any opinion, therefore, the power to confirm the judicial officers who have been promoted vests in the High Court. 12. On the other hand, S. K. Dutta J., was of the view. In this connection it is not necessary to examine Rule 5 (iv) of the Assam Judicial Service (Junior) Rules. 1954, on which the State of Assam and the Accountant General, Assam rely in their contention that the Subordinate Judge can be confirmed in his post only by the Government. If the Rule is in conflict with any constitutional provision, it will be void and must be struck down. 13. Under the provisions of the Constitution itself the power of promotion of persons holding posts inferior to that of the District Judge is in the High Court. It stands to reason that the power to confirm such promotions should also be in the High Court. 14. This Court has no several occasions expressed its view on Article 235 of the Constitution. In State of West Bengal v. Nripendra Nath Bagchi, (1966) 1 SCR 771 = (AIR 1966 SC 447 ) it was pointed out: In the case of the Judicial Service subordinate to the District Judge the appointment has to be made by the Governor in accordance with the rules to be framed after consultation with the State Public Service Commission and the High Court but the power of posting, promotion and grant of leave and the control of the Courts are vested in the High Court. 15. A year later, in State of Assam v. Ranga Mahammed, (1967) 1 SCR 454 = (AIR 1967 SC 903 ) this Court again observed as follows: The High Court is in the day to day control of Courts and knows the capacity for work of individuals and the requirements of a particular station or Court. The High Court is better suited to make transfers than a Minister. For however well-meaning a Minister may be he can never possess the same intimate knowledge of the working of the Judiciary as a whole and of individual Judges, as the High Court. He must depend on his department for information. The Chief Justice and his colleagues know these matters and deal with them personally. There is less chance of being influenced by secretaries who may withhold some vital information if they are interested themselves. It is also well known that all stations are not similar in climate and education, medical and other facilities. Some are good stations and some are not so good. There is less chance of success for a person seeking advantage for himself if the Chief Justice and his colleagues with personal information, deal with the matter than when a Minister deals with it on notes and information supplied by a secretary. 16. This observation was made in relation to a case of transfer, but it applies with greater force to the case of promotion. The result is that we hold that the power of promotion of persons holding posts inferior to that of the District Judge being in the High Court, the power to confirm such promotion is also in the High Court. We also hold that insofar as Rule 5 (iv) is in conflict with Article 235 of the Constitution, it must be held to be invalid. 17. On the basis of the last part of Article 235, an argument was purported to be advanced that the power of the High Court as to promotions was limited. In view of the plain words of the first part of this article, this argument has no basis. 18. In this Court, no other point was made in support of this appeal. 19.
### Response:
0
### Explanation:
This observation was made in relation to a case of transfer, but it applies with greater force to the case of promotion. The result is that we hold that the power of promotion of persons holding posts inferior to that of the District Judge being in the High Court, the power to confirm such promotion is also in the High Court. We also hold that insofar as Rule 5 (iv) is in conflict with Article 235 of the Constitution, it must be held to be invalidOn the basis of the last part of Article 235, an argument was purported to be advanced that the power of the High Court as to promotions was limited. In view of the plain words of the first part of this article, this argument has no basisIn this Court, no other point was made in support of this appeal.
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GOPINATH AND ANOTHER Vs. HARISCHANDRA (D) BY LRS. AND OTHERS
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emoluments to employee for such period as it may specify. The Tribunal chose to exercise its power under section 42 (D) sub- Section 2 and has directed for payment of compensation instead of reinstatement. The Tribunal stated in its order that due to subsequent development Incharge Principal was appointed who has already been approved by the University, reinstatement of the petitioner as Incharge, Principal cannot be made. 19. The order of the Tribunal was challenged by Gitte and Suvalal as noted above. The High Court in its judgment has proceeded on mis-conception that the appointment of Gitte was confirmed as a result of resolution passed by the management committee and he was placed on regular scale. High Court further noticed that the fact that Gitte was not regularly selected was procedural lapse on the part of the management. In this context, observations made by High Court in para 15-16 are noteworthy: 15. The contention of learned counsel for the contesting respondents/interveners is that though, order of reversion could be branded as illegal and late Suvalal had no legal authority to issue the same yet, the petitioner -Prof. H.P.Gitte cannot claim reinstatement for the reason that he was not appointed by Selection Committee constituted under statute No.219. I am unable to persuade myself to go along this line of argument. The appointment of Prof. H.P.Gitte was confirmed as a result of the resolution passed by the Managing Committee and he was accordingly informed by letter dated 24.5.1993(Exh.A). he was placed in regular pay scale of Principal. The letter does not indicate that his such appointment was made subject to approval by the University. The said letter does not show that it was adhoc appointment. On the other hand, the letter referred to above would show that his services as Principal came to be regularized and confirmed. There is difference between irregular appointment and void abinitio appointment. The appointment to the post of Principal is required to be made by the Managing committee of the college after adopting regular procedure. The candidate is required to undergo selection procedure and Selection Committee is to be constituted as per statute No.219. The appointment of petitioner -Prof. H.P. Gitte was quite irregular since he was not selected by the Selection Committee. This was procedural lapse committed by the Management committee of the college. The Petitioner himself was not responsible for such an irregularity. In case of ram Sarup Vs. State of Haryana and Ors., (1978) AIR SC 1536 the Apex Court held that irregular appointment could be regularized as and when the candidate would acquire the necessary qualifications to hold the post. The Apex court observed as under: ...The question then arises as to what was the effect of breach of Cl(1) of R.4 of the Rules. Did it have the effect of rendering the appointment wholly void so as to be completely ineffective or merely irregular, so that it could be regularised as and when the appellant acquired the necessary qualifications to hold the post of Labour-cum-Conciliation Officer. We are of the view that the appointment of the appellant was irregular since he did not posses one of the three requisite qualifications but as soon as he acquired the necessary qualification of five years experience of the working of labour laws in any one of the three capacities mentioned in Cl.(1) of R.4 in any higher capacity, his appointment must be regarded as having been regularised. 16. The irregularity committed by the management of the college could be cured after allowing the Petitioner Prof. H.P.Gitte to undergo selection procedure as required under statute No.219. The appointment could not be regarded as totally void. There are lapses which can be condoned by the University within its discretion. The provisions of statute No.219 would set out methodology for selection to the post of Principal. The Petitioner - Prof. H.P.Gitte was then duly qualified and experienced for such appointment. The requirement of added educational qualification as NET/CET was subsequently introduced. At the relevant time such educational qualification was not a condition precedent for appointment to the post of Principal. The illegal deprivation of the petitioner - Prof. H.P.Gitte from the post of Principal has surely caused a stigma as well as humiliation to him. the approval of the University to such appointment could be sought by the management after making a request to constitute Selection Committee under statute No.219. 20. We have already noted above that the resolution of management confirming the services of Gitte as Principal in regular scale dated 24.5.1993 was disapproved by the University which was communicated vide its letter dated 13.7.1993 extracted above. High Court was in error in not considering the true nature of the appointment of Gitte as Incharge, Principal. It is also relevant to notice that during pendency of the writ petition, regular selections on post of Principal took place twice. In regular selection which was held in 2001 after due advertisement Dr.A.R. Kurme was appointed. In the said selection Gitte did not participate. Dr.Kurme was appointed on 13.8.2001 who subsequently died on 27.12.2005. After death of Dr. Kurme, fresh advertisement was issued on 14.1.2006 for regular Principal. Dr.Ramchandra Kishanrao Ipper one of the appellants who has filed appeal against the order of the High Court was regularly selected and appointed as Principal on 24.03.2006, i.e. before the judgment of High Court. 21. It is also relevant to notice that there was no challenge to the regular selections made during the pendency of the writ petition by Gitte or anyone else. When two regular principals have already joined and worked during the period when the writ petition remained pending, High Court committed error in directing for reinstatement of Gitte with 50% back wages. Direction of reinstatement itself was unfounded. Looking to the very nature of the appointment of Gitte who was only an Incharge, Principal in view of the subsequent development as noticed above, there was no question of direction of reinstatement of Gitte on the post of Incharge Principal.
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1[ds]13. We have considered submission on behalf of the parties. The facts as disclosed above indicate that the appointment of Gitte was only appointment of Incharge Principal which is clear from the terms of the appointment dated 10.1.199115. It is noted in the order of the Tribunal that Gitte was not paid the salary of Principal and he continued as Lecturer, which post he was substantively holding. At this stage, we may also notice one of the submissions made by the learned counsel appearing for Gitte that management has confirmed his services as Principal by letter dated 24.5.1993 by which order the appointment of Gitte was confirmed w.e.f. 11.1.1993 in the pay scale of Rs,4500- 6300/-. A perusal of the order dated 13.7.1993 of the University makes it clear that in reference to letter forwarded praying approval for confirmation of Gitte on the post of Principal in the pay scale,16. The above makes it clear that Gitte was never appointed on the post and he was only Incharge Principal. The letter dated 13.7.1993 noted that Gitte was never appointed by Selection Committee as per selection procedure. Tribunal had already returned a finding that the termination was illegal. The management did not file an appeal against the order of Tribunal. Therefore, those findings still go in favour of Gitte and we need not enter into the said issues since the Tribunal has already held that termination was not valid. We proceed on the premise that the termination of Gitte on 29.12.1993 was not in accordance with law. As the order of Tribunal having not been challenged by the Tribunal, the said order cannot be questioned before us.18. A perusal of the above said provision indicates that when the Tribunal comes to conclusion that termination was in contravention of any law, contract or condition of service, the Tribunal is empowered to reinstate the employee or to award any lesser arrears or emoluments to employee for such period as it may specify. The Tribunal chose to exercise its power under section 42 (D) sub- Section 2 and has directed for payment of compensation instead of reinstatement. The Tribunal stated in its order that due to subsequent development Incharge Principal was appointed who has already been approved by the University, reinstatement of the petitioner as Incharge, Principal cannot be made.19. The order of the Tribunal was challenged by Gitte and Suvalal as noted above. The High Court in its judgment has proceeded on mis-conception that the appointment of Gitte was confirmed as a result of resolution passed by the management committee and he was placed on regular scale. High Court further noticed that the fact that Gitte was not regularly selected was procedural lapse on the part of the management. In this context, observations made by High Court in para 15-16 are noteworthy:15. The contention of learned counsel for the contesting respondents/interveners is that though, order of reversion could be branded as illegal and late Suvalal had no legal authority to issue the same yet, the petitioner -Prof. H.P.Gitte cannot claim reinstatement for the reason that he was not appointed by Selection Committee constituted under statute No.219. I am unable to persuade myself to go along this line of argument. The appointment of Prof. H.P.Gitte was confirmed as a result of the resolution passed by the Managing Committee and he was accordingly informed by letter dated 24.5.1993(Exh.A). he was placed in regular pay scale of Principal. The letter does not indicate that his such appointment was made subject to approval by the University. The said letter does not show that it was adhoc appointment. On the other hand, the letter referred to above would show that his services as Principal came to be regularized and confirmed. There is difference between irregular appointment and void abinitio appointment. The appointment to the post of Principal is required to be made by the Managing committee of the college after adopting regular procedure. The candidate is required to undergo selection procedure and Selection Committee is to be constituted as per statute No.219. The appointment of petitioner -Prof. H.P. Gitte was quite irregular since he was not selected by the Selection Committee. This was procedural lapse committed by the Management committee of the college. The Petitioner himself was not responsible for such an irregularity. In case of ram Sarup Vs. State of Haryana and Ors., (1978) AIR SC 1536 the Apex Court held that irregular appointment could be regularized as and when the candidate would acquire the necessary qualifications to hold the post. The Apex court observed as under:...The question then arises as to what was the effect of breach of Cl(1) of R.4 of the Rules. Did it have the effect of rendering the appointment wholly void so as to be completely ineffective or merely irregular, so that it could be regularised as and when the appellant acquired the necessary qualifications to hold the post of Labour-cum-Conciliation Officer. We are of the view that the appointment of the appellant was irregular since he did not posses one of the three requisite qualifications but as soon as he acquired the necessary qualification of five years experience of the working of labour laws in any one of the three capacities mentioned in Cl.(1) of R.4 in any higher capacity, his appointment must be regarded as having been regularised.16. The irregularity committed by the management of the college could be cured after allowing the Petitioner Prof. H.P.Gitte to undergo selection procedure as required under statute No.219. The appointment could not be regarded as totally void. There are lapses which can be condoned by the University within its discretion. The provisions of statute No.219 would set out methodology for selection to the post of Principal. The Petitioner - Prof. H.P.Gitte was then duly qualified and experienced for such appointment. The requirement of added educational qualification as NET/CET was subsequently introduced. At the relevant time such educational qualification was not a condition precedent for appointment to the post of Principal. The illegal deprivation of the petitioner - Prof. H.P.Gitte from the post of Principal has surely caused a stigma as well as humiliation to him. the approval of the University to such appointment could be sought by the management after making a request to constitute Selection Committee under statute No.219.20. We have already noted above that the resolution of management confirming the services of Gitte as Principal in regular scale dated 24.5.1993 was disapproved by the University which was communicated vide its letter dated 13.7.1993 extracted above. High Court was in error in not considering the true nature of the appointment of Gitte as Incharge, Principal. It is also relevant to notice that during pendency of the writ petition, regular selections on post of Principal took place twice. In regular selection which was held in 2001 after due advertisement Dr.A.R. Kurme was appointed. In the said selection Gitte did not participate. Dr.Kurme was appointed on 13.8.2001 who subsequently died on 27.12.2005. After death of Dr. Kurme, fresh advertisement was issued on 14.1.2006 for regular Principal. Dr.Ramchandra Kishanrao Ipper one of the appellants who has filed appeal against the order of the High Court was regularly selected and appointed as Principal on 24.03.2006, i.e. before the judgment of High Court.21. It is also relevant to notice that there was no challenge to the regular selections made during the pendency of the writ petition by Gitte or anyone else. When two regular principals have already joined and worked during the period when the writ petition remained pending, High Court committed error in directing for reinstatement of Gitte with 50% back wages. Direction of reinstatement itself was unfounded. Looking to the very nature of the appointment of Gitte who was only an Incharge, Principal in view of the subsequent development as noticed above, there was no question of direction of reinstatement of Gitte on the post of Incharge Principal.
| 1 | 3,673 | 1,422 |
### 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:
emoluments to employee for such period as it may specify. The Tribunal chose to exercise its power under section 42 (D) sub- Section 2 and has directed for payment of compensation instead of reinstatement. The Tribunal stated in its order that due to subsequent development Incharge Principal was appointed who has already been approved by the University, reinstatement of the petitioner as Incharge, Principal cannot be made. 19. The order of the Tribunal was challenged by Gitte and Suvalal as noted above. The High Court in its judgment has proceeded on mis-conception that the appointment of Gitte was confirmed as a result of resolution passed by the management committee and he was placed on regular scale. High Court further noticed that the fact that Gitte was not regularly selected was procedural lapse on the part of the management. In this context, observations made by High Court in para 15-16 are noteworthy: 15. The contention of learned counsel for the contesting respondents/interveners is that though, order of reversion could be branded as illegal and late Suvalal had no legal authority to issue the same yet, the petitioner -Prof. H.P.Gitte cannot claim reinstatement for the reason that he was not appointed by Selection Committee constituted under statute No.219. I am unable to persuade myself to go along this line of argument. The appointment of Prof. H.P.Gitte was confirmed as a result of the resolution passed by the Managing Committee and he was accordingly informed by letter dated 24.5.1993(Exh.A). he was placed in regular pay scale of Principal. The letter does not indicate that his such appointment was made subject to approval by the University. The said letter does not show that it was adhoc appointment. On the other hand, the letter referred to above would show that his services as Principal came to be regularized and confirmed. There is difference between irregular appointment and void abinitio appointment. The appointment to the post of Principal is required to be made by the Managing committee of the college after adopting regular procedure. The candidate is required to undergo selection procedure and Selection Committee is to be constituted as per statute No.219. The appointment of petitioner -Prof. H.P. Gitte was quite irregular since he was not selected by the Selection Committee. This was procedural lapse committed by the Management committee of the college. The Petitioner himself was not responsible for such an irregularity. In case of ram Sarup Vs. State of Haryana and Ors., (1978) AIR SC 1536 the Apex Court held that irregular appointment could be regularized as and when the candidate would acquire the necessary qualifications to hold the post. The Apex court observed as under: ...The question then arises as to what was the effect of breach of Cl(1) of R.4 of the Rules. Did it have the effect of rendering the appointment wholly void so as to be completely ineffective or merely irregular, so that it could be regularised as and when the appellant acquired the necessary qualifications to hold the post of Labour-cum-Conciliation Officer. We are of the view that the appointment of the appellant was irregular since he did not posses one of the three requisite qualifications but as soon as he acquired the necessary qualification of five years experience of the working of labour laws in any one of the three capacities mentioned in Cl.(1) of R.4 in any higher capacity, his appointment must be regarded as having been regularised. 16. The irregularity committed by the management of the college could be cured after allowing the Petitioner Prof. H.P.Gitte to undergo selection procedure as required under statute No.219. The appointment could not be regarded as totally void. There are lapses which can be condoned by the University within its discretion. The provisions of statute No.219 would set out methodology for selection to the post of Principal. The Petitioner - Prof. H.P.Gitte was then duly qualified and experienced for such appointment. The requirement of added educational qualification as NET/CET was subsequently introduced. At the relevant time such educational qualification was not a condition precedent for appointment to the post of Principal. The illegal deprivation of the petitioner - Prof. H.P.Gitte from the post of Principal has surely caused a stigma as well as humiliation to him. the approval of the University to such appointment could be sought by the management after making a request to constitute Selection Committee under statute No.219. 20. We have already noted above that the resolution of management confirming the services of Gitte as Principal in regular scale dated 24.5.1993 was disapproved by the University which was communicated vide its letter dated 13.7.1993 extracted above. High Court was in error in not considering the true nature of the appointment of Gitte as Incharge, Principal. It is also relevant to notice that during pendency of the writ petition, regular selections on post of Principal took place twice. In regular selection which was held in 2001 after due advertisement Dr.A.R. Kurme was appointed. In the said selection Gitte did not participate. Dr.Kurme was appointed on 13.8.2001 who subsequently died on 27.12.2005. After death of Dr. Kurme, fresh advertisement was issued on 14.1.2006 for regular Principal. Dr.Ramchandra Kishanrao Ipper one of the appellants who has filed appeal against the order of the High Court was regularly selected and appointed as Principal on 24.03.2006, i.e. before the judgment of High Court. 21. It is also relevant to notice that there was no challenge to the regular selections made during the pendency of the writ petition by Gitte or anyone else. When two regular principals have already joined and worked during the period when the writ petition remained pending, High Court committed error in directing for reinstatement of Gitte with 50% back wages. Direction of reinstatement itself was unfounded. Looking to the very nature of the appointment of Gitte who was only an Incharge, Principal in view of the subsequent development as noticed above, there was no question of direction of reinstatement of Gitte on the post of Incharge Principal.
### Response:
1
### Explanation:
any lesser arrears or emoluments to employee for such period as it may specify. The Tribunal chose to exercise its power under section 42 (D) sub- Section 2 and has directed for payment of compensation instead of reinstatement. The Tribunal stated in its order that due to subsequent development Incharge Principal was appointed who has already been approved by the University, reinstatement of the petitioner as Incharge, Principal cannot be made.19. The order of the Tribunal was challenged by Gitte and Suvalal as noted above. The High Court in its judgment has proceeded on mis-conception that the appointment of Gitte was confirmed as a result of resolution passed by the management committee and he was placed on regular scale. High Court further noticed that the fact that Gitte was not regularly selected was procedural lapse on the part of the management. In this context, observations made by High Court in para 15-16 are noteworthy:15. The contention of learned counsel for the contesting respondents/interveners is that though, order of reversion could be branded as illegal and late Suvalal had no legal authority to issue the same yet, the petitioner -Prof. H.P.Gitte cannot claim reinstatement for the reason that he was not appointed by Selection Committee constituted under statute No.219. I am unable to persuade myself to go along this line of argument. The appointment of Prof. H.P.Gitte was confirmed as a result of the resolution passed by the Managing Committee and he was accordingly informed by letter dated 24.5.1993(Exh.A). he was placed in regular pay scale of Principal. The letter does not indicate that his such appointment was made subject to approval by the University. The said letter does not show that it was adhoc appointment. On the other hand, the letter referred to above would show that his services as Principal came to be regularized and confirmed. There is difference between irregular appointment and void abinitio appointment. The appointment to the post of Principal is required to be made by the Managing committee of the college after adopting regular procedure. The candidate is required to undergo selection procedure and Selection Committee is to be constituted as per statute No.219. The appointment of petitioner -Prof. H.P. Gitte was quite irregular since he was not selected by the Selection Committee. This was procedural lapse committed by the Management committee of the college. The Petitioner himself was not responsible for such an irregularity. In case of ram Sarup Vs. State of Haryana and Ors., (1978) AIR SC 1536 the Apex Court held that irregular appointment could be regularized as and when the candidate would acquire the necessary qualifications to hold the post. The Apex court observed as under:...The question then arises as to what was the effect of breach of Cl(1) of R.4 of the Rules. Did it have the effect of rendering the appointment wholly void so as to be completely ineffective or merely irregular, so that it could be regularised as and when the appellant acquired the necessary qualifications to hold the post of Labour-cum-Conciliation Officer. We are of the view that the appointment of the appellant was irregular since he did not posses one of the three requisite qualifications but as soon as he acquired the necessary qualification of five years experience of the working of labour laws in any one of the three capacities mentioned in Cl.(1) of R.4 in any higher capacity, his appointment must be regarded as having been regularised.16. The irregularity committed by the management of the college could be cured after allowing the Petitioner Prof. H.P.Gitte to undergo selection procedure as required under statute No.219. The appointment could not be regarded as totally void. There are lapses which can be condoned by the University within its discretion. The provisions of statute No.219 would set out methodology for selection to the post of Principal. The Petitioner - Prof. H.P.Gitte was then duly qualified and experienced for such appointment. The requirement of added educational qualification as NET/CET was subsequently introduced. At the relevant time such educational qualification was not a condition precedent for appointment to the post of Principal. The illegal deprivation of the petitioner - Prof. H.P.Gitte from the post of Principal has surely caused a stigma as well as humiliation to him. the approval of the University to such appointment could be sought by the management after making a request to constitute Selection Committee under statute No.219.20. We have already noted above that the resolution of management confirming the services of Gitte as Principal in regular scale dated 24.5.1993 was disapproved by the University which was communicated vide its letter dated 13.7.1993 extracted above. High Court was in error in not considering the true nature of the appointment of Gitte as Incharge, Principal. It is also relevant to notice that during pendency of the writ petition, regular selections on post of Principal took place twice. In regular selection which was held in 2001 after due advertisement Dr.A.R. Kurme was appointed. In the said selection Gitte did not participate. Dr.Kurme was appointed on 13.8.2001 who subsequently died on 27.12.2005. After death of Dr. Kurme, fresh advertisement was issued on 14.1.2006 for regular Principal. Dr.Ramchandra Kishanrao Ipper one of the appellants who has filed appeal against the order of the High Court was regularly selected and appointed as Principal on 24.03.2006, i.e. before the judgment of High Court.21. It is also relevant to notice that there was no challenge to the regular selections made during the pendency of the writ petition by Gitte or anyone else. When two regular principals have already joined and worked during the period when the writ petition remained pending, High Court committed error in directing for reinstatement of Gitte with 50% back wages. Direction of reinstatement itself was unfounded. Looking to the very nature of the appointment of Gitte who was only an Incharge, Principal in view of the subsequent development as noticed above, there was no question of direction of reinstatement of Gitte on the post of Incharge Principal.
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Muralidhar Sarangi Vs. The New India Assurance Co
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may be examined on merit. It is contended by the learned counsel for the appellant that the claim was covered by Section 1 of the Policy which provides, inter alia, as under :- "1. The Company will indemnify the Insured against loss or damage to the Motor Vehicle andor its accessories whilst thereon..............(c) by malicious act........................" 6. Learned counsel for the respondent, on the contrary, contended that the claim made by the appellant was not enforceable under the Policies in question on account of Provision (b) of endorsement No. IMT 21 which provides as under :- "(b) mutiny assuming the proportion of or amounting to popular rising, military rising, rebellion, revolution, insurrection, military or usurped power or any act of any person acting on behalf of or in connection with any organisation with activities directed towards the overthrow by force of the Government de jure or de facto or to the influence of it by terrorism or violence or by the direct or indirect consequence of the said occurrences." 7. While the State Commission held that the destruction of the two trucks at the hands of the Bodo terrorists would be covered by Clause (c) of condition No. 1 of the Policy as it was a "malicious act", the National Commission recorded the finding that the case would be governed by the Provision (b) of Endorsement No. IMT 21. A `malicious act, according to State Commission, would be an act prohibited by law, which is done with intention to cause loss to another. The act which resulted in the destruction of the trucks belonging to the appellant could have been treated to be a "malicious act" but having regard to the circumstances of this case, specially that the incident took place in an area which had already been declared to be a "disturbed area" within the meaning of the Armed Forces (Special Powers) Act, 1958 and where the provisions of TADA Act were enforced, such activity cannot be considered in isolation.8. Endorsement IMT 21, which has been reproduced above, consists of two distinct parts. The first part speaks of mutiny assuming the proportion of popular rising, military rising, rebellion, revolution, insurrection etc. The second part consists of : "Any act of any person acting on behalf of or in connection with any organisation with activities directed towards the overthrow by force of the Government de jure or de facto or to the influence of it by terrorism or violence or by the direct or indirect consequence of the said occurrences." 9. The second part thus contemplates individual acts, though, the acts may have been done on behalf of or in connection with any organisation or under the influence of it. Whether these acts of terrorism by Bodo activists are intended to overthrow the Government, de facto or de jure, by force, have not been established by direct evidence, but the series of acts resulting in the loss of life and property so as to compel the authorities to declare the whole area as "disturbed area" for the purpose of the Armed Forces (Special Powers) Act, 1958, as also to enforce the Terrorist and Disruptive Activities (Prevention) Act, 1987, definitely point out that not only the common people but also the Government, established by law, is intended to be overawed by acts of terrorism in an organised manner for and on behalf of a group which is basically responsible for such activities.10. The second part also speaks of the acts of "terrorism or violence". Terrorism, as ordinarily understood, means the act of terrorising. In Websters Comprehensive Dictionary, one of the meanings assigned to the word "terrorism" is that it means "unlawful acts of violence committed in an organised attempt to overthrow a Government". Sub-section (1) of Section 3 of TADA Act, 1987 provides as under :- "3. Punishment for terrorist acts. - (1) Whoever with intent to overawe the Government as by law established or to strike terror in people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or fire arms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community, or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act, commits a terrorist act." 11. The above are acts which are treated as terrorist acts and such acts are made punishable under Sub-section (2) with death or imprisonment for life etc. etc. The terrorist acts may be done with intent to "overawe" the Government as by law established or to strike terror in people or any section of the people or to alienate any section of the people and other acts specified therein.Disruptive activities have been set out in Section 4 of the Act which may not be enumerated here.12. When read in the light of the above statutory provisions as also the attending circumstances of this case, it becomes clear that Provision (b) of Endorsement IMT 21 of the Insurance Policies did not cover the risk complained of. The trucks were destroyed by act of terrorism and a driver of the truck was also shot dead. The National Commission was, therefore, fully justified in its conclusion that the respondent was not liable for the loss suffered by the appellant at the hands of Bodo activists who completely destroyed the trucks of the appellant by setting them on fire and killed one of the drivers.
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0[ds]7. While the State Commission held that the destruction of the two trucks at the hands of the Bodo terrorists would be covered by Clause (c) of condition No. 1 of the Policy as it was a "malicious act", the National Commission recorded the finding that the case would be governed by the Provision (b) of Endorsement No. IMT 21. A `malicious act, according to State Commission, would be an act prohibited by law, which is done with intention to cause loss to another. The act which resulted in the destruction of the trucks belonging to the appellant could have been treated to be a "malicious act" but having regard to the circumstances of this case, specially that the incident took place in an area which had already been declared to be a "disturbed area" within the meaning of the Armed Forces (Special Powers) Act, 1958 and where the provisions of TADA Act were enforced, such activity cannot be considered in isolation.8. Endorsement IMT 21, which has been reproduced above, consists of two distinct parts. The first part speaks of mutiny assuming the proportion of popular rising, military rising, rebellion, revolution, insurrection etc.The second part thus contemplates individual acts, though, the acts may have been done on behalf of or in connection with any organisation or under the influence of it. Whether these acts of terrorism by Bodo activists are intended to overthrow the Government, de facto or de jure, by force, have not been established by direct evidence, but the series of acts resulting in the loss of life and property so as to compel the authorities to declare the whole area as "disturbed area" for the purpose of the Armed Forces (Special Powers) Act, 1958, as also to enforce the Terrorist and Disruptive Activities (Prevention) Act, 1987, definitely point out that not only the common people but also the Government, established by law, is intended to be overawed by acts of terrorism in an organised manner for and on behalf of a group which is basically responsible for such activities.10. The second part also speaks of the acts of "terrorism or violence". Terrorism, as ordinarily understood, means the act of terrorising. In Websters Comprehensive Dictionary, one of the meanings assigned to the word "terrorism" is that it means "unlawful acts of violence committed in an organised attempt to overthrow a Government".The above are acts which are treated as terrorist acts and such acts are made punishable under(2) with death or imprisonment for life etc. etc. The terrorist acts may be done with intent to "overawe" the Government as by law established or to strike terror in people or any section of the people or to alienate any section of the people and other acts specified therein.Disruptive activities have been set out in Section 4 of the Act which may not be enumerated here.12. When read in the light of the above statutory provisions as also the attending circumstances of this case, it becomes clear that Provision (b) of Endorsement IMT 21 of the Insurance Policies did not cover the risk complained of. The trucks were destroyed by act of terrorism and a driver of the truck was also shot dead. The National Commission was, therefore, fully justified in its conclusion that the respondent was not liable for the loss suffered by the appellant at the hands of Bodo activists who completely destroyed the trucks of the appellant by setting them on fire and killed one of the drivers.
| 0 | 2,419 | 666 |
### 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:
may be examined on merit. It is contended by the learned counsel for the appellant that the claim was covered by Section 1 of the Policy which provides, inter alia, as under :- "1. The Company will indemnify the Insured against loss or damage to the Motor Vehicle andor its accessories whilst thereon..............(c) by malicious act........................" 6. Learned counsel for the respondent, on the contrary, contended that the claim made by the appellant was not enforceable under the Policies in question on account of Provision (b) of endorsement No. IMT 21 which provides as under :- "(b) mutiny assuming the proportion of or amounting to popular rising, military rising, rebellion, revolution, insurrection, military or usurped power or any act of any person acting on behalf of or in connection with any organisation with activities directed towards the overthrow by force of the Government de jure or de facto or to the influence of it by terrorism or violence or by the direct or indirect consequence of the said occurrences." 7. While the State Commission held that the destruction of the two trucks at the hands of the Bodo terrorists would be covered by Clause (c) of condition No. 1 of the Policy as it was a "malicious act", the National Commission recorded the finding that the case would be governed by the Provision (b) of Endorsement No. IMT 21. A `malicious act, according to State Commission, would be an act prohibited by law, which is done with intention to cause loss to another. The act which resulted in the destruction of the trucks belonging to the appellant could have been treated to be a "malicious act" but having regard to the circumstances of this case, specially that the incident took place in an area which had already been declared to be a "disturbed area" within the meaning of the Armed Forces (Special Powers) Act, 1958 and where the provisions of TADA Act were enforced, such activity cannot be considered in isolation.8. Endorsement IMT 21, which has been reproduced above, consists of two distinct parts. The first part speaks of mutiny assuming the proportion of popular rising, military rising, rebellion, revolution, insurrection etc. The second part consists of : "Any act of any person acting on behalf of or in connection with any organisation with activities directed towards the overthrow by force of the Government de jure or de facto or to the influence of it by terrorism or violence or by the direct or indirect consequence of the said occurrences." 9. The second part thus contemplates individual acts, though, the acts may have been done on behalf of or in connection with any organisation or under the influence of it. Whether these acts of terrorism by Bodo activists are intended to overthrow the Government, de facto or de jure, by force, have not been established by direct evidence, but the series of acts resulting in the loss of life and property so as to compel the authorities to declare the whole area as "disturbed area" for the purpose of the Armed Forces (Special Powers) Act, 1958, as also to enforce the Terrorist and Disruptive Activities (Prevention) Act, 1987, definitely point out that not only the common people but also the Government, established by law, is intended to be overawed by acts of terrorism in an organised manner for and on behalf of a group which is basically responsible for such activities.10. The second part also speaks of the acts of "terrorism or violence". Terrorism, as ordinarily understood, means the act of terrorising. In Websters Comprehensive Dictionary, one of the meanings assigned to the word "terrorism" is that it means "unlawful acts of violence committed in an organised attempt to overthrow a Government". Sub-section (1) of Section 3 of TADA Act, 1987 provides as under :- "3. Punishment for terrorist acts. - (1) Whoever with intent to overawe the Government as by law established or to strike terror in people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or fire arms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community, or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act, commits a terrorist act." 11. The above are acts which are treated as terrorist acts and such acts are made punishable under Sub-section (2) with death or imprisonment for life etc. etc. The terrorist acts may be done with intent to "overawe" the Government as by law established or to strike terror in people or any section of the people or to alienate any section of the people and other acts specified therein.Disruptive activities have been set out in Section 4 of the Act which may not be enumerated here.12. When read in the light of the above statutory provisions as also the attending circumstances of this case, it becomes clear that Provision (b) of Endorsement IMT 21 of the Insurance Policies did not cover the risk complained of. The trucks were destroyed by act of terrorism and a driver of the truck was also shot dead. The National Commission was, therefore, fully justified in its conclusion that the respondent was not liable for the loss suffered by the appellant at the hands of Bodo activists who completely destroyed the trucks of the appellant by setting them on fire and killed one of the drivers.
### Response:
0
### Explanation:
7. While the State Commission held that the destruction of the two trucks at the hands of the Bodo terrorists would be covered by Clause (c) of condition No. 1 of the Policy as it was a "malicious act", the National Commission recorded the finding that the case would be governed by the Provision (b) of Endorsement No. IMT 21. A `malicious act, according to State Commission, would be an act prohibited by law, which is done with intention to cause loss to another. The act which resulted in the destruction of the trucks belonging to the appellant could have been treated to be a "malicious act" but having regard to the circumstances of this case, specially that the incident took place in an area which had already been declared to be a "disturbed area" within the meaning of the Armed Forces (Special Powers) Act, 1958 and where the provisions of TADA Act were enforced, such activity cannot be considered in isolation.8. Endorsement IMT 21, which has been reproduced above, consists of two distinct parts. The first part speaks of mutiny assuming the proportion of popular rising, military rising, rebellion, revolution, insurrection etc.The second part thus contemplates individual acts, though, the acts may have been done on behalf of or in connection with any organisation or under the influence of it. Whether these acts of terrorism by Bodo activists are intended to overthrow the Government, de facto or de jure, by force, have not been established by direct evidence, but the series of acts resulting in the loss of life and property so as to compel the authorities to declare the whole area as "disturbed area" for the purpose of the Armed Forces (Special Powers) Act, 1958, as also to enforce the Terrorist and Disruptive Activities (Prevention) Act, 1987, definitely point out that not only the common people but also the Government, established by law, is intended to be overawed by acts of terrorism in an organised manner for and on behalf of a group which is basically responsible for such activities.10. The second part also speaks of the acts of "terrorism or violence". Terrorism, as ordinarily understood, means the act of terrorising. In Websters Comprehensive Dictionary, one of the meanings assigned to the word "terrorism" is that it means "unlawful acts of violence committed in an organised attempt to overthrow a Government".The above are acts which are treated as terrorist acts and such acts are made punishable under(2) with death or imprisonment for life etc. etc. The terrorist acts may be done with intent to "overawe" the Government as by law established or to strike terror in people or any section of the people or to alienate any section of the people and other acts specified therein.Disruptive activities have been set out in Section 4 of the Act which may not be enumerated here.12. When read in the light of the above statutory provisions as also the attending circumstances of this case, it becomes clear that Provision (b) of Endorsement IMT 21 of the Insurance Policies did not cover the risk complained of. The trucks were destroyed by act of terrorism and a driver of the truck was also shot dead. The National Commission was, therefore, fully justified in its conclusion that the respondent was not liable for the loss suffered by the appellant at the hands of Bodo activists who completely destroyed the trucks of the appellant by setting them on fire and killed one of the drivers.
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Commissioner of Income Tax Vs. Rucha Engineers Private Limited
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be labelled as inaccurate merely because the revenue on strenuous reasonings accepted the same as capital receipt, rejecting the claim of the respondent- assessee that the same was capital receipt. The facts of the matter show that, the A.O., after he passed the earlier order dated 30.12.2005, waited till the order in appeal was passed on 24.3.2006, and only thereafter on 27.3.2007, passed present impugned order (Exhibit B), imposing penalty in the proceedings, which had been started earlier. Thus, even the A.O. appears to have harboured doubts whether his order would be interfered with. We agree with the orders in the first appeal as well as the orders of the tribunal that the amount claimed by the assessee was debatable and when the assessee had given all the necessary particulars, it could not be construed as concealing the income or furnishing inaccurate particulars for evasion of tax. The issue whether prepayment of loan at a discounted value constitutes taxable event or not, is debatable and we agree with the judgment in the first appeal and the judgment of the Tribunal that the facts of the case of "Thirumaliaswamy", there was scope to distinguish.A legal contention raised bonafide by the respondent- assessee claiming the amounts to be capital receipt, only because the same was not accepted, by itself cannot be said to be act of fraud or gross or willful negligence. Record shows that, the respondent- assessee was relying on decisions of various Courts to support its claim. Merely because the claim was rejected, the same cannot be branded as concealment. Before proceeding to the explanation below Section 271 and putting the responsibility on the assessee, it is necessary for the A.O. to first demonstrate that the explanation of the assessee or the conduct of the assessee was not reasonable on human probabilities, or that it was in the nature of violating settled legal positions. It cannot be said that, the explanations given by the respondent- assessee were fanciful, baseless or unacceptable.15. With reference to Section 271(1)(c) reproduced above, it would be appropriate to refer to observations of the Honble the Supreme Court in the matter of Commissioner of Income Tax, Ahmedabad Vs. Reliance Petroproducts Pvt. Ltd., reported in [(2010) 11 Supreme Court Cases 762] . In this regard, in para Nos.10 and 11, the observations were as under:"10. . . . . .A glance at this provision would suggest that in order to be covered, there has to be concealment of the particulars of the income of the assessee. Secondly, the assessee must have furnished inaccurate particulars of his income. Present is not the case of concealment of the income. That is not the case of the Revenue either. However, the learned counsel for the revenue suggested that by making incorrect claim for the expenditure on interest, the assessee has furnished inaccurate particulars of the income. As per Law Lexicon, the meaning of the word "particular" is a detail or details (in plural sense); the details of a claim, or the separate items of an account. Therefore, the word "particulars" used in Section 271(1)(c) would embrace the meaning of the details of the claim made. It is an admitted position in the present case that no information given in the return was found to be incorrect or inaccurate. It is not as if any statement made or any detail supplied was found to be factually incorrect. Hence, at least, prima facie, the assessee cannot be held guilty of furnishing inaccurate particulars.""11. The learned counsel argued that "submitting an incorrect claim in law for the expenditure on interest would amount to giving inaccurate particulars of such income". We do not think that such can be the interpretation of the words concerned. The words are plain and simple. In order to expose the assessee to the penalty unless the case is strictly covered by the provision, the penalty provision cannot be invoked. By any stretch of imagination, making an incorrect claim in law cannot tantamount to furnishing inaccurate particulars."In para Nos.17 and 20, the Honble Supreme Court observed as follows :"17. We are not concerned in the present case with mens rea. However, we have to only see as to whether in this case, as a matter of fact, the assessee has given inaccurate particulars. In Websters Dictionary, the word "inaccurate" has been defined as :"not accurate, not exact or correct: not according to truth; erroneous, as an inaccurate statement, copy of transcript.""We have already seen the meaning of the word "particulars" in the earlier part of this judgment. Reading the words in conjunction, they must mean the details supplied in the return, which are not accurate, not exact or correct, not according to truth or erroneous.""20. . . . . Merely because the assessee had claimed the expenditure, which claim was not accepted or was not acceptable to the revenue, that by itself would not, in our opinion, attract the penalty under section 271(1)(c). If we accept the contention of the Revenue then in case of every return where the claim made is not accepted by the assessing officer for any reason, the assessee will invite penalty under Section 271(1)(c). That is clearly not the intendment of the legislature."16. For reasons mentioned above, we do not find any error in the orders passed by the appellate Tribunal maintaining deletion of the penalty as was imposed by the A.O. The two courts of appeal below rightly held that the act of the assessee was bonafide even though the assessee may have failed to substantiate its claim that the amount was capital receipt. The assessee had not concealed and had disclosed necessary particulars in the form of notes to the statement of8909364905 _ 97f179e3d5 _ o income and it could not be said that, the assessee made wrong claims which could be branded as inaccurate particulars. The substantial questions of law raised on the basis of facts of the present matter are answered against the revenue.17. There is no substance in the Appeal.
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0[ds]13. It is quite clear that the respondent had not concealed the particulars of its income. The necessary particulars had been furnished in more than one way. The issue whether the concerned amount was revenue receipt or capital receipt is clearly debatable and separate proceedings in that regard are already pending in this High Court, which is not disputed fact. In this judgment, we are not deciding if the said amount was capital receipt or revenue receipt. Material here is only if there was a debatable issue. The respondentassessee submitted necessary particulars by way of audited accounts and also statement of total income and even added necessary notes with the returns and took a stand. We find that, there is no substance in the arguments of the appellantRevenue that explanation (1) of Section 271 is attracted. It will be necessary to first show that, either the particulars were "concealed" or that the particulars were "inaccurate". Unless this requirement of section 271(1)(c) gets attracted, the question of going to the explanation will not arise.14. Apart from this, even if the explanation is perused, it cannot be said that, explanation offered by thewas false. The respondentassessee did put up an explanation along with necessary notes. Only because the stand taken was not accepted by the A.O., relying on reasonings from different rulings does not make the explanation false. Both the courts in appeal below have found the explanation of the respondentassessee as bonafide. In such situation, in the present appeal, we would not like to enter into that question which must be said to be question of fact. The particulars furnished by the assessee cannot be labelled as inaccurate merely because the revenue on strenuous reasonings accepted the same as capital receipt, rejecting the claim of the respondentassessee that the same was capital receipt. The facts of the matter show that, the A.O., after he passed the earlier order dated 30.12.2005, waited till the order in appeal was passed on 24.3.2006, and only thereafter on 27.3.2007, passed present impugned order (Exhibit B), imposing penalty in the proceedings, which had been started earlier. Thus, even the A.O. appears to have harboured doubts whether his order would be interfered with. We agree with the orders in the first appeal as well as the orders of the tribunal that the amount claimed by the assessee was debatable and when the assessee had given all the necessary particulars, it could not be construed as concealing the income or furnishing inaccurate particulars for evasion of tax. The issue whether prepayment of loan at a discounted value constitutes taxable event or not, is debatable and we agree with the judgment in the first appeal and the judgment of the Tribunal that the facts of the case of "Thirumaliaswamy", there was scope to distinguish.A legal contention raised bonafide by the respondentassessee claiming the amounts to be capital receipt, only because the same was not accepted, by itself cannot be said to be act of fraud or gross or willful negligence. Record shows that, the respondentassessee was relying on decisions of various Courts to support its claim. Merely because the claim was rejected, the same cannot be branded as concealment. Before proceeding to the explanation below Section 271 and putting the responsibility on the assessee, it is necessary for the A.O. to first demonstrate that the explanation of the assessee or the conduct of the assessee was not reasonable on human probabilities, or that it was in the nature of violating settled legal positions. It cannot be said that, the explanations given by the respondentassessee were fanciful, baseless or unacceptable.15. With reference to Section 271(1)(c) reproduced above, it would be appropriate to refer to observations of the Honble the Supreme Court in the matter of Commissioner of Income Tax, Ahmedabad Vs. Reliance Petroproducts Pvt. Ltd., reported in [(2010) 11 Supreme Court Cases 762] . In this regard, in para Nos.10 and 11, the observations were as under:"10. . . . . .A glance at this provision would suggest that in order to be covered, there has to be concealment of the particulars of the income of the assessee. Secondly, the assessee must have furnished inaccurate particulars of his income. Present is not the case of concealment of the income. That is not the case of the Revenue either. However, the learned counsel for the revenue suggested that by making incorrect claim for the expenditure on interest, the assessee has furnished inaccurate particulars of the income. As per Law Lexicon, the meaning of the word "particular" is a detail or details (in plural sense); the details of a claim, or the separate items of an account. Therefore, the word "particulars" used in Section 271(1)(c) would embrace the meaning of the details of the claim made. It is an admitted position in the present case that no information given in the return was found to be incorrect or inaccurate. It is not as if any statement made or any detail supplied was found to be factually incorrect. Hence, at least, prima facie, the assessee cannot be held guilty of furnishing inaccurate particulars.""11. The learned counsel argued that "submitting an incorrect claim in law for the expenditure on interest would amount to giving inaccurate particulars of such income". We do not think that such can be the interpretation of the words concerned. The words are plain and simple. In order to expose the assessee to the penalty unless the case is strictly covered by the provision, the penalty provision cannot be invoked. By any stretch of imagination, making an incorrect claim in law cannot tantamount to furnishing inaccurate particulars."In para Nos.17 and 20, the Honble Supreme Court observed as follows :"17. We are not concerned in the present case with mens rea. However, we have to only see as to whether in this case, as a matter of fact, the assessee has given inaccurate particulars. In Websters Dictionary, the word "inaccurate" has been defined as :"not accurate, not exact or correct: not according to truth; erroneous, as an inaccurate statement, copy of transcript.""We have already seen the meaning of the word "particulars" in the earlier part of this judgment. Reading the words in conjunction, they must mean the details supplied in the return, which are not accurate, not exact or correct, not according to truth or erroneous.""20. . . . . Merely because the assessee had claimed the expenditure, which claim was not accepted or was not acceptable to the revenue, that by itself would not, in our opinion, attract the penalty under section 271(1)(c). If we accept the contention of the Revenue then in case of every return where the claim made is not accepted by the assessing officer for any reason, the assessee will invite penalty under Section 271(1)(c). That is clearly not the intendment of the legislature."16. For reasons mentioned above, we do not find any error in the orders passed by the appellate Tribunal maintaining deletion of the penalty as was imposed by the A.O. The two courts of appeal below rightly held that the act of the assessee was bonafide even though the assessee may have failed to substantiate its claim that the amount was capital receipt. The assessee had not concealed and had disclosed necessary particulars in the form of notes to the statement of8909364905 _ 97f179e3d5 _ o income and it could not be said that, the assessee made wrong claims which could be branded as inaccurate particulars. The substantial questions of law raised on the basis of facts of the present matter are answered against the revenue.17. There is no substance in the Appeal.
| 0 | 5,618 | 1,483 |
### 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:
be labelled as inaccurate merely because the revenue on strenuous reasonings accepted the same as capital receipt, rejecting the claim of the respondent- assessee that the same was capital receipt. The facts of the matter show that, the A.O., after he passed the earlier order dated 30.12.2005, waited till the order in appeal was passed on 24.3.2006, and only thereafter on 27.3.2007, passed present impugned order (Exhibit B), imposing penalty in the proceedings, which had been started earlier. Thus, even the A.O. appears to have harboured doubts whether his order would be interfered with. We agree with the orders in the first appeal as well as the orders of the tribunal that the amount claimed by the assessee was debatable and when the assessee had given all the necessary particulars, it could not be construed as concealing the income or furnishing inaccurate particulars for evasion of tax. The issue whether prepayment of loan at a discounted value constitutes taxable event or not, is debatable and we agree with the judgment in the first appeal and the judgment of the Tribunal that the facts of the case of "Thirumaliaswamy", there was scope to distinguish.A legal contention raised bonafide by the respondent- assessee claiming the amounts to be capital receipt, only because the same was not accepted, by itself cannot be said to be act of fraud or gross or willful negligence. Record shows that, the respondent- assessee was relying on decisions of various Courts to support its claim. Merely because the claim was rejected, the same cannot be branded as concealment. Before proceeding to the explanation below Section 271 and putting the responsibility on the assessee, it is necessary for the A.O. to first demonstrate that the explanation of the assessee or the conduct of the assessee was not reasonable on human probabilities, or that it was in the nature of violating settled legal positions. It cannot be said that, the explanations given by the respondent- assessee were fanciful, baseless or unacceptable.15. With reference to Section 271(1)(c) reproduced above, it would be appropriate to refer to observations of the Honble the Supreme Court in the matter of Commissioner of Income Tax, Ahmedabad Vs. Reliance Petroproducts Pvt. Ltd., reported in [(2010) 11 Supreme Court Cases 762] . In this regard, in para Nos.10 and 11, the observations were as under:"10. . . . . .A glance at this provision would suggest that in order to be covered, there has to be concealment of the particulars of the income of the assessee. Secondly, the assessee must have furnished inaccurate particulars of his income. Present is not the case of concealment of the income. That is not the case of the Revenue either. However, the learned counsel for the revenue suggested that by making incorrect claim for the expenditure on interest, the assessee has furnished inaccurate particulars of the income. As per Law Lexicon, the meaning of the word "particular" is a detail or details (in plural sense); the details of a claim, or the separate items of an account. Therefore, the word "particulars" used in Section 271(1)(c) would embrace the meaning of the details of the claim made. It is an admitted position in the present case that no information given in the return was found to be incorrect or inaccurate. It is not as if any statement made or any detail supplied was found to be factually incorrect. Hence, at least, prima facie, the assessee cannot be held guilty of furnishing inaccurate particulars.""11. The learned counsel argued that "submitting an incorrect claim in law for the expenditure on interest would amount to giving inaccurate particulars of such income". We do not think that such can be the interpretation of the words concerned. The words are plain and simple. In order to expose the assessee to the penalty unless the case is strictly covered by the provision, the penalty provision cannot be invoked. By any stretch of imagination, making an incorrect claim in law cannot tantamount to furnishing inaccurate particulars."In para Nos.17 and 20, the Honble Supreme Court observed as follows :"17. We are not concerned in the present case with mens rea. However, we have to only see as to whether in this case, as a matter of fact, the assessee has given inaccurate particulars. In Websters Dictionary, the word "inaccurate" has been defined as :"not accurate, not exact or correct: not according to truth; erroneous, as an inaccurate statement, copy of transcript.""We have already seen the meaning of the word "particulars" in the earlier part of this judgment. Reading the words in conjunction, they must mean the details supplied in the return, which are not accurate, not exact or correct, not according to truth or erroneous.""20. . . . . Merely because the assessee had claimed the expenditure, which claim was not accepted or was not acceptable to the revenue, that by itself would not, in our opinion, attract the penalty under section 271(1)(c). If we accept the contention of the Revenue then in case of every return where the claim made is not accepted by the assessing officer for any reason, the assessee will invite penalty under Section 271(1)(c). That is clearly not the intendment of the legislature."16. For reasons mentioned above, we do not find any error in the orders passed by the appellate Tribunal maintaining deletion of the penalty as was imposed by the A.O. The two courts of appeal below rightly held that the act of the assessee was bonafide even though the assessee may have failed to substantiate its claim that the amount was capital receipt. The assessee had not concealed and had disclosed necessary particulars in the form of notes to the statement of8909364905 _ 97f179e3d5 _ o income and it could not be said that, the assessee made wrong claims which could be branded as inaccurate particulars. The substantial questions of law raised on the basis of facts of the present matter are answered against the revenue.17. There is no substance in the Appeal.
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0
### Explanation:
by the assessee cannot be labelled as inaccurate merely because the revenue on strenuous reasonings accepted the same as capital receipt, rejecting the claim of the respondentassessee that the same was capital receipt. The facts of the matter show that, the A.O., after he passed the earlier order dated 30.12.2005, waited till the order in appeal was passed on 24.3.2006, and only thereafter on 27.3.2007, passed present impugned order (Exhibit B), imposing penalty in the proceedings, which had been started earlier. Thus, even the A.O. appears to have harboured doubts whether his order would be interfered with. We agree with the orders in the first appeal as well as the orders of the tribunal that the amount claimed by the assessee was debatable and when the assessee had given all the necessary particulars, it could not be construed as concealing the income or furnishing inaccurate particulars for evasion of tax. The issue whether prepayment of loan at a discounted value constitutes taxable event or not, is debatable and we agree with the judgment in the first appeal and the judgment of the Tribunal that the facts of the case of "Thirumaliaswamy", there was scope to distinguish.A legal contention raised bonafide by the respondentassessee claiming the amounts to be capital receipt, only because the same was not accepted, by itself cannot be said to be act of fraud or gross or willful negligence. Record shows that, the respondentassessee was relying on decisions of various Courts to support its claim. Merely because the claim was rejected, the same cannot be branded as concealment. Before proceeding to the explanation below Section 271 and putting the responsibility on the assessee, it is necessary for the A.O. to first demonstrate that the explanation of the assessee or the conduct of the assessee was not reasonable on human probabilities, or that it was in the nature of violating settled legal positions. It cannot be said that, the explanations given by the respondentassessee were fanciful, baseless or unacceptable.15. With reference to Section 271(1)(c) reproduced above, it would be appropriate to refer to observations of the Honble the Supreme Court in the matter of Commissioner of Income Tax, Ahmedabad Vs. Reliance Petroproducts Pvt. Ltd., reported in [(2010) 11 Supreme Court Cases 762] . In this regard, in para Nos.10 and 11, the observations were as under:"10. . . . . .A glance at this provision would suggest that in order to be covered, there has to be concealment of the particulars of the income of the assessee. Secondly, the assessee must have furnished inaccurate particulars of his income. Present is not the case of concealment of the income. That is not the case of the Revenue either. However, the learned counsel for the revenue suggested that by making incorrect claim for the expenditure on interest, the assessee has furnished inaccurate particulars of the income. As per Law Lexicon, the meaning of the word "particular" is a detail or details (in plural sense); the details of a claim, or the separate items of an account. Therefore, the word "particulars" used in Section 271(1)(c) would embrace the meaning of the details of the claim made. It is an admitted position in the present case that no information given in the return was found to be incorrect or inaccurate. It is not as if any statement made or any detail supplied was found to be factually incorrect. Hence, at least, prima facie, the assessee cannot be held guilty of furnishing inaccurate particulars.""11. The learned counsel argued that "submitting an incorrect claim in law for the expenditure on interest would amount to giving inaccurate particulars of such income". We do not think that such can be the interpretation of the words concerned. The words are plain and simple. In order to expose the assessee to the penalty unless the case is strictly covered by the provision, the penalty provision cannot be invoked. By any stretch of imagination, making an incorrect claim in law cannot tantamount to furnishing inaccurate particulars."In para Nos.17 and 20, the Honble Supreme Court observed as follows :"17. We are not concerned in the present case with mens rea. However, we have to only see as to whether in this case, as a matter of fact, the assessee has given inaccurate particulars. In Websters Dictionary, the word "inaccurate" has been defined as :"not accurate, not exact or correct: not according to truth; erroneous, as an inaccurate statement, copy of transcript.""We have already seen the meaning of the word "particulars" in the earlier part of this judgment. Reading the words in conjunction, they must mean the details supplied in the return, which are not accurate, not exact or correct, not according to truth or erroneous.""20. . . . . Merely because the assessee had claimed the expenditure, which claim was not accepted or was not acceptable to the revenue, that by itself would not, in our opinion, attract the penalty under section 271(1)(c). If we accept the contention of the Revenue then in case of every return where the claim made is not accepted by the assessing officer for any reason, the assessee will invite penalty under Section 271(1)(c). That is clearly not the intendment of the legislature."16. For reasons mentioned above, we do not find any error in the orders passed by the appellate Tribunal maintaining deletion of the penalty as was imposed by the A.O. The two courts of appeal below rightly held that the act of the assessee was bonafide even though the assessee may have failed to substantiate its claim that the amount was capital receipt. The assessee had not concealed and had disclosed necessary particulars in the form of notes to the statement of8909364905 _ 97f179e3d5 _ o income and it could not be said that, the assessee made wrong claims which could be branded as inaccurate particulars. The substantial questions of law raised on the basis of facts of the present matter are answered against the revenue.17. There is no substance in the Appeal.
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SMT. SUVARNAMMA & ANR Vs. UNITED INDIA INSURANCE COMPANY LTD. & ANR
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against the judgment dated 10th July, 2015 passed by the High Court of Karnataka at Bengaluru in Miscellaneous First Appeal No. 1045 of 2011. By the said judgment, the High Court has allowed the appeal filed by the Insurance Company exonerating it from the liability and set aside the judgment of the Motor Accident Claims Tribunal, Chickballapur awarding compensation to the claimants.3. Pursuant to a complaint lodged on 13th July, 2004 by the appellant No. 1 herein in P.S. Cheluru stating that her husband Narasa Reddy left home at 7 p.m. on 12th July, 2004 for supplying milk to the Chakavelu Dairy and did not return. In the early morning on the next day it was learnt that her husband was crushed under a ground levelling tractor bearing registration No. TN 38 B 5899 at Brahamanara Tank, near Maddamma Temple on Chakavelu-Buddalavara Palli Road causing his instantaneous death on the spot due to high speed and negligent driving by the driver of the tractor. Accordingly, FIR has been registered in Crime No. 28/2004 under Sections 279 and 304(A), IPC. Subsequently, two claim petitions have been filed one by the wife and son of the deceased and the other by the father of the deceased, claiming compensation.4. Learned Senior Civil Judge and Member of Motor Accident Claims Tribunal, Chickballapur framed the issues and arrived at a conclusion that the deceased died in the said motor accident due to rash and negligent driving of the respondent No. 2 herein (owner of the tractor). Accordingly, the Tribunal has awarded a compensation of Rs.4,31,000/- to the legal representatives of the deceased i.e. Appellants herein and Rs.10,000/- to the father of the deceased on the head of loss of love and affection. The tribunal has also directed that the Insurance Company (Respondent No.1) and owner of the tractor (Respondent No. 2) are jointly and severally liable to pay the said compensation amounts with an interest @ 6% p.a. w.e.f. the date of claim petition till the date of realization and they shall deposit the said amounts within three months from the date of its order.5. Aggrieved by the judgment of the Tribunal awarding compensation to the appellants herein, the Insurance Company assailed the same before the High Court in Miscellaneous First Appeal No. 1045 of 2011. However, the High Court formed the view that the claim of legal heirs of the deceased was based on false grounds. By the judgment impugned herein, the High Court declared the judgment of the Tribunal in awarding compensation to the legal heirs of the deceased as erroneous and set aside the same absolving the insurance company from the liability. Consequently, the legal heirs of the deceased being appellants herein are before us in the present appeal.6. We have heard learned counsel on either side and carefully perused the material on record.7. Learned counsel appearing for the appellants submitted that the High Court has committed a serious error of law by disproving the specific finding recorded by the Tribunal based on the valid material on record. It is clear from the evidence of eyewitness Eashwara Reddy—PW3 who was a passerby at the relevant time that the accident occurred due to rash driving in negligent manner by the driver of the vehicle while the victim was walking on the footpath. In spite of cogent and reliable evidence adduced by PW3, the High Court discredited the same and wrongly presumed that the deceased was travelling in the tractor by sitting on its blade, though there was no evidence let in by the Insurance Company on that aspect. Even in the absence of examination of the driver of the tractor, though nothing was adversely elicited in the cross-examination of prosecution witnesses, the High Court ignoring the settled principles of law based its judgment only on certain presumptions, conjectures and surmises which requires interference of this Court.8. Learned counsel appearing for the Insurance Company, however, supported the judgment of the High Court and submitted that the High Court was right in not relying on the evidence of PW3. The theory that the deceased was walking on the footpath at the time of accident, was introduced by the appellants only with a view to claim compensation. The High Court assessed the aforesaid circumstances in a proper perspective and rightly observed that the appellants are not entitled for compensation.9. Having given our anxious consideration to the rival submissions advanced by the respective counsel and having perused the material on record. There is no dispute about the fact that at the time of occurrence the tractor which involved in the accident was being driven by the driver—owner in a rash and negligent manner. The evidence of PW3, an independent eyewitness to the incident, in all probabilities, makes it clear that the deceased had died because of the accident caused by the tractor that was being driven in a rash and negligent manner while the victim was going to his home as a pedestrian on the footpath. The FIR also discloses the very fact. At the same time, we find no material on record except the deposition of RW-1, the Divisional Manager of the Insurance Company, to establish that the victim was a passenger of the tractor. A mere statement that the victim was unlawfully travelling on the tractor, without any probable evidence cannot be taken into consideration, when the evidence to the contrary is available, in the form of deposition of an independent eyewitness. Notably enough, the driver-owner-insured of the tractor was not examined as witness. It is also manifest that he did not prefer appeal against the verdict of the Tribunal which in other words supports the case of appellants—claimants. Considering the circumstances stated above, in our opinion, the conclusion reached by the Tribunal is a possible view, which could not have been reversed by the High Court by merely making sweeping observations in a casual manner without there being any reliable evidence. We, therefore, afford our concurrence to the judgment arrived at by the Tribunal.
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1[ds]9. Having given our anxious consideration to the rival submissions advanced by the respective counsel and having perused the material on record. There is no dispute about the fact that at the time of occurrence the tractor which involved in the accident was being driven by the driver—owner in a rash and negligent manner. The evidence of PW3, an independent eyewitness to the incident, in all probabilities, makes it clear that the deceased had died because of the accident caused by the tractor that was being driven in a rash and negligent manner while the victim was going to his home as a pedestrian on the footpath. The FIR also discloses the very fact. At the same time, we find no material on record except the deposition of RW-1, the Divisional Manager of the Insurance Company, to establish that the victim was a passenger of the tractor. A mere statement that the victim was unlawfully travelling on the tractor, without any probable evidence cannot be taken into consideration, when the evidence to the contrary is available, in the form of deposition of an independent eyewitness. Notably enough, the driver-owner-insured of the tractor was not examined as witness. It is also manifest that he did not prefer appeal against the verdict of the Tribunal which in other words supports the case of appellants—claimants. Considering the circumstances stated above, in our opinion, the conclusion reached by the Tribunal is a possible view, which could not have been reversed by the High Court by merely making sweeping observations in a casual manner without there being any reliable evidence. We, therefore, afford our concurrence to the judgment arrived at by the Tribunal.
| 1 | 1,101 | 309 |
### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
against the judgment dated 10th July, 2015 passed by the High Court of Karnataka at Bengaluru in Miscellaneous First Appeal No. 1045 of 2011. By the said judgment, the High Court has allowed the appeal filed by the Insurance Company exonerating it from the liability and set aside the judgment of the Motor Accident Claims Tribunal, Chickballapur awarding compensation to the claimants.3. Pursuant to a complaint lodged on 13th July, 2004 by the appellant No. 1 herein in P.S. Cheluru stating that her husband Narasa Reddy left home at 7 p.m. on 12th July, 2004 for supplying milk to the Chakavelu Dairy and did not return. In the early morning on the next day it was learnt that her husband was crushed under a ground levelling tractor bearing registration No. TN 38 B 5899 at Brahamanara Tank, near Maddamma Temple on Chakavelu-Buddalavara Palli Road causing his instantaneous death on the spot due to high speed and negligent driving by the driver of the tractor. Accordingly, FIR has been registered in Crime No. 28/2004 under Sections 279 and 304(A), IPC. Subsequently, two claim petitions have been filed one by the wife and son of the deceased and the other by the father of the deceased, claiming compensation.4. Learned Senior Civil Judge and Member of Motor Accident Claims Tribunal, Chickballapur framed the issues and arrived at a conclusion that the deceased died in the said motor accident due to rash and negligent driving of the respondent No. 2 herein (owner of the tractor). Accordingly, the Tribunal has awarded a compensation of Rs.4,31,000/- to the legal representatives of the deceased i.e. Appellants herein and Rs.10,000/- to the father of the deceased on the head of loss of love and affection. The tribunal has also directed that the Insurance Company (Respondent No.1) and owner of the tractor (Respondent No. 2) are jointly and severally liable to pay the said compensation amounts with an interest @ 6% p.a. w.e.f. the date of claim petition till the date of realization and they shall deposit the said amounts within three months from the date of its order.5. Aggrieved by the judgment of the Tribunal awarding compensation to the appellants herein, the Insurance Company assailed the same before the High Court in Miscellaneous First Appeal No. 1045 of 2011. However, the High Court formed the view that the claim of legal heirs of the deceased was based on false grounds. By the judgment impugned herein, the High Court declared the judgment of the Tribunal in awarding compensation to the legal heirs of the deceased as erroneous and set aside the same absolving the insurance company from the liability. Consequently, the legal heirs of the deceased being appellants herein are before us in the present appeal.6. We have heard learned counsel on either side and carefully perused the material on record.7. Learned counsel appearing for the appellants submitted that the High Court has committed a serious error of law by disproving the specific finding recorded by the Tribunal based on the valid material on record. It is clear from the evidence of eyewitness Eashwara Reddy—PW3 who was a passerby at the relevant time that the accident occurred due to rash driving in negligent manner by the driver of the vehicle while the victim was walking on the footpath. In spite of cogent and reliable evidence adduced by PW3, the High Court discredited the same and wrongly presumed that the deceased was travelling in the tractor by sitting on its blade, though there was no evidence let in by the Insurance Company on that aspect. Even in the absence of examination of the driver of the tractor, though nothing was adversely elicited in the cross-examination of prosecution witnesses, the High Court ignoring the settled principles of law based its judgment only on certain presumptions, conjectures and surmises which requires interference of this Court.8. Learned counsel appearing for the Insurance Company, however, supported the judgment of the High Court and submitted that the High Court was right in not relying on the evidence of PW3. The theory that the deceased was walking on the footpath at the time of accident, was introduced by the appellants only with a view to claim compensation. The High Court assessed the aforesaid circumstances in a proper perspective and rightly observed that the appellants are not entitled for compensation.9. Having given our anxious consideration to the rival submissions advanced by the respective counsel and having perused the material on record. There is no dispute about the fact that at the time of occurrence the tractor which involved in the accident was being driven by the driver—owner in a rash and negligent manner. The evidence of PW3, an independent eyewitness to the incident, in all probabilities, makes it clear that the deceased had died because of the accident caused by the tractor that was being driven in a rash and negligent manner while the victim was going to his home as a pedestrian on the footpath. The FIR also discloses the very fact. At the same time, we find no material on record except the deposition of RW-1, the Divisional Manager of the Insurance Company, to establish that the victim was a passenger of the tractor. A mere statement that the victim was unlawfully travelling on the tractor, without any probable evidence cannot be taken into consideration, when the evidence to the contrary is available, in the form of deposition of an independent eyewitness. Notably enough, the driver-owner-insured of the tractor was not examined as witness. It is also manifest that he did not prefer appeal against the verdict of the Tribunal which in other words supports the case of appellants—claimants. Considering the circumstances stated above, in our opinion, the conclusion reached by the Tribunal is a possible view, which could not have been reversed by the High Court by merely making sweeping observations in a casual manner without there being any reliable evidence. We, therefore, afford our concurrence to the judgment arrived at by the Tribunal.
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1
### Explanation:
9. Having given our anxious consideration to the rival submissions advanced by the respective counsel and having perused the material on record. There is no dispute about the fact that at the time of occurrence the tractor which involved in the accident was being driven by the driver—owner in a rash and negligent manner. The evidence of PW3, an independent eyewitness to the incident, in all probabilities, makes it clear that the deceased had died because of the accident caused by the tractor that was being driven in a rash and negligent manner while the victim was going to his home as a pedestrian on the footpath. The FIR also discloses the very fact. At the same time, we find no material on record except the deposition of RW-1, the Divisional Manager of the Insurance Company, to establish that the victim was a passenger of the tractor. A mere statement that the victim was unlawfully travelling on the tractor, without any probable evidence cannot be taken into consideration, when the evidence to the contrary is available, in the form of deposition of an independent eyewitness. Notably enough, the driver-owner-insured of the tractor was not examined as witness. It is also manifest that he did not prefer appeal against the verdict of the Tribunal which in other words supports the case of appellants—claimants. Considering the circumstances stated above, in our opinion, the conclusion reached by the Tribunal is a possible view, which could not have been reversed by the High Court by merely making sweeping observations in a casual manner without there being any reliable evidence. We, therefore, afford our concurrence to the judgment arrived at by the Tribunal.
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M/S.Sree Narayana Chandrika Trust Vs. Commnr. Of Gift Tax, Kerala
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on the basis of the written-down value of the machinery in the books of accounts. Within a short time the partners floated another partnership and brought in the said machinery as their capital contribution thereto at a value which was almost three times the written down value. The newly floated partnership sold the machinery to another concern for a still higher price. The Gift Tax Officer held that the assessee firm had made a gift of the machinery to each of its five partners for inadequate consideration and, therefore, the transaction was assessable to gift tax. This Court distinguished the judgment in Sunil Siddharthabhai (supra) and held that when there is a dissolution of partnership or a partner retires and obtains in lieu of his interest in the firm an asset of the firm, no transfer is involved for the reason set out in the passage quoted above. But the position is very different, when, during the subsistence of a partnership, an asset of the partnership becomes the asset of only one of the partners thereof, there is, in such a case, a transfer of that asset by the partnership to the individual partner. Where such transfer is for less than the value of that asset, there is a deemed gift to the extent of the difference under the provisions of section 4(1)(a) of the Gift Tax Act, 1958. Learned counsel for the Revenue contended that what was said by this Court in B.T. Patil case (supra) was equally applicable to the case of the present appellant before us.13. Although it may be possible to say in the appellants case that relinquishment of the share of a profit/loss by a partner in favour of the inducted partner may amount to a transfer, we are unable to accept the contention that it was for inadequate consideration so as to amount to a taxable gift within the meaning of section 4(1)(a) of the Gift Tax Act. The learned counsel for the assessee has drawn our attention to the judgment of the Karnataka High Court in D.C. Shah vs. Commissioner of Gift Tax, Karnataka [134 ITR 493]. That was also a case where, upon reconstitution of the firm, an incoming partner who contributed certain amount of capital was given a share in the partnership which was relinquished in his favour by an existing partner. The High Court held that having regard to the nature and constitution of a firm and the implication of the judgment of the Supreme Court in Gheevarghese case [1972 ITR 83, 403] a mere reallocation of shares would not result in a gift. The fact that there was some contribution by the incoming partners coupled with the obligation under the partnership deed upon the incoming partner to participate in the business and work for it diligently would constitute adequate consideration. There was an obligation upon all the partners to work for the progress of the business, albeit for administration convenience or overall guidance one of them might have been nominated as a managing partner, but that does not mean that the service to be rendered by other partners was either negligible or in any way diminished or could be left out of account. Hence, it was held that there was adequate consideration for the transfer by way of reallocation of shares. The judgment in DC Shah (supra) came to be appealed to this Court at the instance of the Revenue. The appeal came to be disposed of by this Court by a judgment in Civil Appeal Nos. 4551-56 of 1984 on September 25, 1996, wherein it was held "that the share of one partner is decreased and that of another partner correspondingly increased does not lead to the inference that the former had gifted out to the latter. The profit sharing ratio in a firm can vary for a number of reasons, among them the ability of partners to devote time to the business of the firm. The gift of a partners share to another partner has to be established be relevant evidence. The onus of doing so is on the Revenue. It has not been discharged in the present case." 14. The facts found in the present case are that the incoming partner (M.U. Indira) had contributed Rs. 25,000 towards her share of the capital. The value of her services or usefulness to the firm as partner has not been disputed by the Revenue authorities. As pointed out by this Court in D.C. Shah case (supra), the mere fact that upon reconstitution of the firm the share of one partner decreased and that of another increased cannot lead to the inference that the former had gifted the difference to the incoming partner. There is no other material placed on record by the Revenue to show that, in the facts and circumstances of the case, particularly taking into consideration the obligations of all the partners in the partnership deed dated 1.10.1982, there was inadequate consideration for the reallocation of 12% of the share in favour of the incoming partner. In our view, the contribution of Rs. 25,000 towards the capital together with the obligations undertaken of sincerely and faithfully carrying on the business for common advantage of the firm was adequate consideration for reallocating the share of the profits and giving 12% of the share in favour of the incoming partner M.U. Indira. That C.K. Jinan was the managing partner and C.N. Purushuthaman was the administrative head, did not take away the obligations of the other partners including those of M.U. Indira which arose generally under the Partnership Act, as well as under the partnership deed dated 1.10.1982.15. We are of the view that even assuming that there was a transfer of 12% of the share profit/loss in favour of the incoming partner M.U. Indira by the appellant assessee, it was not a situation of transfer for inadequate consideration so as to amount to a taxable gift within the meaning of section 4(1)(a) of the Gift Tax Act, 1958.
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1[ds]14. The facts found in the present case are that the incoming partner (M.U. Indira) had contributed Rs. 25,000 towards her share of the capital. The value of her services or usefulness to the firm as partner has not been disputed by the Revenue authorities. As pointed out by this Court in D.C. Shah case (supra), the mere fact that upon reconstitution of the firm the share of one partner decreased and that of another increased cannot lead to the inference that the former had gifted the difference to the incoming partner. There is no other material placed on record by the Revenue to show that, in the facts and circumstances of the case, particularly taking into consideration the obligations of all the partners in the partnership deed dated 1.10.1982, there was inadequate consideration for the reallocation of 12% of the share in favour of the incoming partner. In our view, the contribution of Rs. 25,000 towards the capital together with the obligations undertaken of sincerely and faithfully carrying on the business for common advantage of the firm was adequate consideration for reallocating the share of the profits and giving 12% of the share in favour of the incoming partner M.U. Indira. That C.K. Jinan was the managing partner and C.N. Purushuthaman was the administrative head, did not take away the obligations of the other partners including those of M.U. Indira which arose generally under the Partnership Act, as well as under the partnership deed dated 1.10.1982.15. We are of the view that even assuming that there was a transfer of 12% of the share profit/loss in favour of the incoming partner M.U. Indira by the appellant assessee, it was not a situation of transfer for inadequate consideration so as to amount to a taxable gift within the meaning of section 4(1)(a) of the Gift Tax Act,that case a partner of a partnership firm having retired, two minor sons of an existing partner were admitted to the benefits of the partnership. This Court held that relinquishment of the share of an existing partner in favour of the minors who are admitted to the benefits of the partnership without any consideration amounted to a gift by the said partner in favour of the minors. The reason was that the goodwill of the firm is the property of the firm and, upon admission of the two minors to the benefits of the partnership, the right to the money value of the capital stands transferred. Since this transfer is without consideration, insofar as minors are concerned, the transaction would amount to a taxable gift under the giftthe position is very different, when, during the subsistence of a partnership, an asset of the partnership becomes the asset of only one of the partners thereof, there is, in such a case, a transfer of that asset by the partnership to the individual partner. Where such transfer is for less than the value of that asset, there is a deemed gift to the extent of the difference under the provisions of section 4(1)(a) of the Gift Tax Act, 1958. Learned counsel for the Revenue contended that what was said by this Court in B.T. Patil case (supra) was equally applicable to the case of the present appellant before us.13. Although it may be possible to say in the appellants case that relinquishment of the share of a profit/loss by a partner in favour of the inducted partner may amount to a transfer, we are unable to accept the contention that it was for inadequate consideration so as to amount to a taxable gift within the meaning of section 4(1)(a) of the Gift Taxwas also a case where, upon reconstitution of the firm, an incoming partner who contributed certain amount of capital was given a share in the partnership which was relinquished in his favour by an existing partner. The High Court held that having regard to the nature and constitution of a firm and the implication of the judgment of the Supreme Court in Gheevarghese case [1972 ITR 83, 403] a mere reallocation of shares would not result in a gift. The fact that there was some contribution by the incoming partners coupled with the obligation under the partnership deed upon the incoming partner to participate in the business and work for it diligently would constitute adequate consideration. There was an obligation upon all the partners to work for the progress of the business, albeit for administration convenience or overall guidance one of them might have been nominated as a managing partner, but that does not mean that the service to be rendered by other partners was either negligible or in any way diminished or could be left out of account. Hence, it was held that there was adequate consideration for the transfer by way of reallocation of shares. The judgment in DC Shah (supra) came to be appealed to this Court at the instance of the Revenue. The appeal came to be disposed of by this Court by a judgment in Civil Appeal Nos.of 1984 on September 25, 1996, wherein it was held "that the share of one partner is decreased and that of another partner correspondingly increased does not lead to the inference that the former had gifted out to the latter. The profit sharing ratio in a firm can vary for a number of reasons, among them the ability of partners to devote time to the business of the firm. The gift of a partners share to another partner has to be established be relevant evidence. The onus of doing so is on the Revenue. It has not been discharged in the present case."
| 1 | 3,341 | 1,045 |
### 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:
on the basis of the written-down value of the machinery in the books of accounts. Within a short time the partners floated another partnership and brought in the said machinery as their capital contribution thereto at a value which was almost three times the written down value. The newly floated partnership sold the machinery to another concern for a still higher price. The Gift Tax Officer held that the assessee firm had made a gift of the machinery to each of its five partners for inadequate consideration and, therefore, the transaction was assessable to gift tax. This Court distinguished the judgment in Sunil Siddharthabhai (supra) and held that when there is a dissolution of partnership or a partner retires and obtains in lieu of his interest in the firm an asset of the firm, no transfer is involved for the reason set out in the passage quoted above. But the position is very different, when, during the subsistence of a partnership, an asset of the partnership becomes the asset of only one of the partners thereof, there is, in such a case, a transfer of that asset by the partnership to the individual partner. Where such transfer is for less than the value of that asset, there is a deemed gift to the extent of the difference under the provisions of section 4(1)(a) of the Gift Tax Act, 1958. Learned counsel for the Revenue contended that what was said by this Court in B.T. Patil case (supra) was equally applicable to the case of the present appellant before us.13. Although it may be possible to say in the appellants case that relinquishment of the share of a profit/loss by a partner in favour of the inducted partner may amount to a transfer, we are unable to accept the contention that it was for inadequate consideration so as to amount to a taxable gift within the meaning of section 4(1)(a) of the Gift Tax Act. The learned counsel for the assessee has drawn our attention to the judgment of the Karnataka High Court in D.C. Shah vs. Commissioner of Gift Tax, Karnataka [134 ITR 493]. That was also a case where, upon reconstitution of the firm, an incoming partner who contributed certain amount of capital was given a share in the partnership which was relinquished in his favour by an existing partner. The High Court held that having regard to the nature and constitution of a firm and the implication of the judgment of the Supreme Court in Gheevarghese case [1972 ITR 83, 403] a mere reallocation of shares would not result in a gift. The fact that there was some contribution by the incoming partners coupled with the obligation under the partnership deed upon the incoming partner to participate in the business and work for it diligently would constitute adequate consideration. There was an obligation upon all the partners to work for the progress of the business, albeit for administration convenience or overall guidance one of them might have been nominated as a managing partner, but that does not mean that the service to be rendered by other partners was either negligible or in any way diminished or could be left out of account. Hence, it was held that there was adequate consideration for the transfer by way of reallocation of shares. The judgment in DC Shah (supra) came to be appealed to this Court at the instance of the Revenue. The appeal came to be disposed of by this Court by a judgment in Civil Appeal Nos. 4551-56 of 1984 on September 25, 1996, wherein it was held "that the share of one partner is decreased and that of another partner correspondingly increased does not lead to the inference that the former had gifted out to the latter. The profit sharing ratio in a firm can vary for a number of reasons, among them the ability of partners to devote time to the business of the firm. The gift of a partners share to another partner has to be established be relevant evidence. The onus of doing so is on the Revenue. It has not been discharged in the present case." 14. The facts found in the present case are that the incoming partner (M.U. Indira) had contributed Rs. 25,000 towards her share of the capital. The value of her services or usefulness to the firm as partner has not been disputed by the Revenue authorities. As pointed out by this Court in D.C. Shah case (supra), the mere fact that upon reconstitution of the firm the share of one partner decreased and that of another increased cannot lead to the inference that the former had gifted the difference to the incoming partner. There is no other material placed on record by the Revenue to show that, in the facts and circumstances of the case, particularly taking into consideration the obligations of all the partners in the partnership deed dated 1.10.1982, there was inadequate consideration for the reallocation of 12% of the share in favour of the incoming partner. In our view, the contribution of Rs. 25,000 towards the capital together with the obligations undertaken of sincerely and faithfully carrying on the business for common advantage of the firm was adequate consideration for reallocating the share of the profits and giving 12% of the share in favour of the incoming partner M.U. Indira. That C.K. Jinan was the managing partner and C.N. Purushuthaman was the administrative head, did not take away the obligations of the other partners including those of M.U. Indira which arose generally under the Partnership Act, as well as under the partnership deed dated 1.10.1982.15. We are of the view that even assuming that there was a transfer of 12% of the share profit/loss in favour of the incoming partner M.U. Indira by the appellant assessee, it was not a situation of transfer for inadequate consideration so as to amount to a taxable gift within the meaning of section 4(1)(a) of the Gift Tax Act, 1958.
### Response:
1
### Explanation:
14. The facts found in the present case are that the incoming partner (M.U. Indira) had contributed Rs. 25,000 towards her share of the capital. The value of her services or usefulness to the firm as partner has not been disputed by the Revenue authorities. As pointed out by this Court in D.C. Shah case (supra), the mere fact that upon reconstitution of the firm the share of one partner decreased and that of another increased cannot lead to the inference that the former had gifted the difference to the incoming partner. There is no other material placed on record by the Revenue to show that, in the facts and circumstances of the case, particularly taking into consideration the obligations of all the partners in the partnership deed dated 1.10.1982, there was inadequate consideration for the reallocation of 12% of the share in favour of the incoming partner. In our view, the contribution of Rs. 25,000 towards the capital together with the obligations undertaken of sincerely and faithfully carrying on the business for common advantage of the firm was adequate consideration for reallocating the share of the profits and giving 12% of the share in favour of the incoming partner M.U. Indira. That C.K. Jinan was the managing partner and C.N. Purushuthaman was the administrative head, did not take away the obligations of the other partners including those of M.U. Indira which arose generally under the Partnership Act, as well as under the partnership deed dated 1.10.1982.15. We are of the view that even assuming that there was a transfer of 12% of the share profit/loss in favour of the incoming partner M.U. Indira by the appellant assessee, it was not a situation of transfer for inadequate consideration so as to amount to a taxable gift within the meaning of section 4(1)(a) of the Gift Tax Act,that case a partner of a partnership firm having retired, two minor sons of an existing partner were admitted to the benefits of the partnership. This Court held that relinquishment of the share of an existing partner in favour of the minors who are admitted to the benefits of the partnership without any consideration amounted to a gift by the said partner in favour of the minors. The reason was that the goodwill of the firm is the property of the firm and, upon admission of the two minors to the benefits of the partnership, the right to the money value of the capital stands transferred. Since this transfer is without consideration, insofar as minors are concerned, the transaction would amount to a taxable gift under the giftthe position is very different, when, during the subsistence of a partnership, an asset of the partnership becomes the asset of only one of the partners thereof, there is, in such a case, a transfer of that asset by the partnership to the individual partner. Where such transfer is for less than the value of that asset, there is a deemed gift to the extent of the difference under the provisions of section 4(1)(a) of the Gift Tax Act, 1958. Learned counsel for the Revenue contended that what was said by this Court in B.T. Patil case (supra) was equally applicable to the case of the present appellant before us.13. Although it may be possible to say in the appellants case that relinquishment of the share of a profit/loss by a partner in favour of the inducted partner may amount to a transfer, we are unable to accept the contention that it was for inadequate consideration so as to amount to a taxable gift within the meaning of section 4(1)(a) of the Gift Taxwas also a case where, upon reconstitution of the firm, an incoming partner who contributed certain amount of capital was given a share in the partnership which was relinquished in his favour by an existing partner. The High Court held that having regard to the nature and constitution of a firm and the implication of the judgment of the Supreme Court in Gheevarghese case [1972 ITR 83, 403] a mere reallocation of shares would not result in a gift. The fact that there was some contribution by the incoming partners coupled with the obligation under the partnership deed upon the incoming partner to participate in the business and work for it diligently would constitute adequate consideration. There was an obligation upon all the partners to work for the progress of the business, albeit for administration convenience or overall guidance one of them might have been nominated as a managing partner, but that does not mean that the service to be rendered by other partners was either negligible or in any way diminished or could be left out of account. Hence, it was held that there was adequate consideration for the transfer by way of reallocation of shares. The judgment in DC Shah (supra) came to be appealed to this Court at the instance of the Revenue. The appeal came to be disposed of by this Court by a judgment in Civil Appeal Nos.of 1984 on September 25, 1996, wherein it was held "that the share of one partner is decreased and that of another partner correspondingly increased does not lead to the inference that the former had gifted out to the latter. The profit sharing ratio in a firm can vary for a number of reasons, among them the ability of partners to devote time to the business of the firm. The gift of a partners share to another partner has to be established be relevant evidence. The onus of doing so is on the Revenue. It has not been discharged in the present case."
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Collector of Central Excise Vs. New Tobacco Co. and Ors.
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affected by the prohibition are in a position to observe the law or to promote the observance of the law. The said observation was made by this Court in the context of mens rea being a necessary ingredient of the offence. In that very case this Court has observed that individual service of a general notification on every member of the public is not necessary and all that the subordinate law making authority can or need do, would be to publish it in such a manner that persons can, if they are interested, acquaint themselves with its contents. 7. In State of Madhya Pradesh vs. Ram Ragubir Prasad Agarwal AIR 1979 SC 888 , while interpreting the word publish in s. 3(2) of MP Prathamik, Middle School Tatha Madhyamik Shiksha (Pathya Pustakon Sambandhi Vyavastha) Adhiniyam, this Court observed that in our view, the purpose of s. 3 animates the meaning of the expression publish. Publication is the act of publishing anything; offering it to public notice, or rendering it accessible to public scrutiny ... an advising of the public; a making known of something to them for a purpose. Logomachic exercises need not detain us because the obvious legislative object is to ensure that when the Board lays down the syllabi it must publish the same so that when the stage of prescribing text-books according to such syllabi arrives, both the publishers and the State Government and even the educationists among the public may have some precise conception about the relevant syllabi to enable Government to decide upon suitable text-books from the private market or compiled under s. 5 by the State Government itself. In our view, therefore, publication to the educational world is the connotation of the expression. Even the student and the teaching community may have to know what the relevant syllabus for a subject is, which means wider publicity than minimal communication to the departmental officialdom. 8. Following this judgment Madras High Court in Asia Tobacco Co. Ltd. vs. Union of India [1985]155ITR568(Mad) , held that in such cases the effective date is the date of knowledge and not the date of the official Gazette. The relevant observation made in paragraph 4 of the said judgment are as under : The mere printing of the official Gazette containing the relevant notification and without making the same available for circulation and putting it on sale to the public will not amount to the notification within the meaning of r. 8(1) of the Rules. The intendment of the notification in the official Gazette is that in the case of either grant or withdrawal of exemption the public must come to know of the same. Notify even according to ordinary dictionary meaning would be to take note of, observe; to make known, publish, proclaim; to announce; to give notice to; to inform. It would be a mockery of the rule to state that it would suffice the purpose of the notification if the notification is merely printed in the Official Gazette, without making the same available for circulation to the public or putting it on sale to the public ...... Neither the date of the notification nor the date of printing, nor the date of Gazette counts for notification within the meaning of the rule, but only the date when the public gets notified in the sense, the concerned Gazette is made available to the public. The date of release of the publication is the decisive date to make the notification effective. Printing of the official Gazette and stacking them without releasing to the public would not amount to notification at all ...... The respondents are taking up a stand that the petitioner is expected to be aware of the Withdrawal Notification and that the words publish in official Gazette and the words put up for sale to public are not synonymous and offering for sale to publish is a subsequent step which cannot be imported into the Act, and the respondents are expressing similar stands. They could not be of any avail at all to the respondents to get out of the legal implications flowing from want of due notification, as exemplified above. Printing the notification in the official Gazette, without making it available for circulation to the concerned public, or placing it for sale to the said public, would certainly not satisfy the idea of notification in the legal sense. The same view was taken by the Bombay High Court in GTC Industries Ltd. vs. Union of India 1987 (13) ECR 1161 and by Delhi High Court in Universal Cans and Containers vs. Union of India 1993 (10) ELT 23 (Del). 9. The following observations made in the case of B. K. Srinivasan & Ors. vs. State of Karnataka [1987]1SCR1054 , also support the view that we are taking : Whether law is viewed from the standpoint of the conscientious good man seeking to abide by the law or from the standpoint of Justice Holmess unconscientious bad man seeking to avoid the law, law must be known, that is to say, it must be so made it can be known. 10. Our attention was also drawn to the decisions of this Court in Pankaj Jain Agencies vs. Union of India & Ors. 1994ECR28(SC) and ITC Ltd. vs. Collector of Central Excise, Bombay 1996(86)ELT477(SC) but they are not helpful in deciding the question that arises in these cases. 11. We hold that a Central Excise Notification can be said to have been published, except when it is provided otherwise, when it is so issued as to make it known to the public. It would be a proper publication if it is published in such a manner that persons can, if they are so interested, acquaint themselves with its contents. If publication is through a Gazette then mere printing of it in the Gazette would not be enough. Unless the Gazette containing the notification is made available to the public, the notification cannot be said to have been duly published.
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1[ds]4. Sec. 38 of the act provides that all the rules made and notifications issued under the act shall be published in the official Gazette. So, the requirement of s. 38 is publication of the rules and the notifications in the official Gazette. The dictionary meaning of the word publish as given in Websters Comprehensive Dictionary, International Edition, is (1) To make known or announce publicly; promulgate; proclaim. (2) To print and issue to the public. (3) To communicate to a third person. According to the Legal Glossary, published by the Legislative Department, Ministry of Law, Justice and Company Affairs, Government of India in 1992, it means to make generally accessible or available; to place before or offer to public; to bring before the public for sale or distribution. Thus the word publish connotes not only an act of printing but also further action of issuing or making it available to the publiEven if we go by the dictionary meaning, the requirement of publishing the notifications would connote that what is intended to give notice or information to the public can be treated as published only when it is made available to the public so that they can know about it. The requirement of publishing the notifications in the official Gazette, which is an official journal or a newspaper containing public notices and other prescribed matters, also indicates that the word publish in s. 38 should be so interpreted.9. The following observations made in the case of B. K. Srinivasan & Ors. vs. State of Karnataka [1987]1SCR1054 , also support the view that we are taking :Whether law is viewed from the standpoint of the conscientious good man seeking to abide by the law or from the standpoint of Justice Holmess unconscientious bad man seeking to avoid the law, law must be known, that is to say, it must be so made it can be known.10. Our attention was also drawn to the decisions of this Court in Pankaj Jain Agencies vs. Union of India & Ors. 1994ECR28(SC) and ITC Ltd. vs. Collector of Central Excise, Bombay 1996(86)ELT477(SC) but they are not helpful in deciding the question that arises in these cases.11. We hold that a Central Excise Notification can be said to have been published, except when it is provided otherwise, when it is so issued as to make it known to the public. It would be a proper publication if it is published in such a manner that persons can, if they are so interested, acquaint themselves with its contents. If publication is through a Gazette then mere printing of it in the Gazette would not be enough. Unless the Gazette containing the notification is made available to the public, the notification cannot be said to have been duly published.
| 1 | 3,117 | 529 |
### 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:
affected by the prohibition are in a position to observe the law or to promote the observance of the law. The said observation was made by this Court in the context of mens rea being a necessary ingredient of the offence. In that very case this Court has observed that individual service of a general notification on every member of the public is not necessary and all that the subordinate law making authority can or need do, would be to publish it in such a manner that persons can, if they are interested, acquaint themselves with its contents. 7. In State of Madhya Pradesh vs. Ram Ragubir Prasad Agarwal AIR 1979 SC 888 , while interpreting the word publish in s. 3(2) of MP Prathamik, Middle School Tatha Madhyamik Shiksha (Pathya Pustakon Sambandhi Vyavastha) Adhiniyam, this Court observed that in our view, the purpose of s. 3 animates the meaning of the expression publish. Publication is the act of publishing anything; offering it to public notice, or rendering it accessible to public scrutiny ... an advising of the public; a making known of something to them for a purpose. Logomachic exercises need not detain us because the obvious legislative object is to ensure that when the Board lays down the syllabi it must publish the same so that when the stage of prescribing text-books according to such syllabi arrives, both the publishers and the State Government and even the educationists among the public may have some precise conception about the relevant syllabi to enable Government to decide upon suitable text-books from the private market or compiled under s. 5 by the State Government itself. In our view, therefore, publication to the educational world is the connotation of the expression. Even the student and the teaching community may have to know what the relevant syllabus for a subject is, which means wider publicity than minimal communication to the departmental officialdom. 8. Following this judgment Madras High Court in Asia Tobacco Co. Ltd. vs. Union of India [1985]155ITR568(Mad) , held that in such cases the effective date is the date of knowledge and not the date of the official Gazette. The relevant observation made in paragraph 4 of the said judgment are as under : The mere printing of the official Gazette containing the relevant notification and without making the same available for circulation and putting it on sale to the public will not amount to the notification within the meaning of r. 8(1) of the Rules. The intendment of the notification in the official Gazette is that in the case of either grant or withdrawal of exemption the public must come to know of the same. Notify even according to ordinary dictionary meaning would be to take note of, observe; to make known, publish, proclaim; to announce; to give notice to; to inform. It would be a mockery of the rule to state that it would suffice the purpose of the notification if the notification is merely printed in the Official Gazette, without making the same available for circulation to the public or putting it on sale to the public ...... Neither the date of the notification nor the date of printing, nor the date of Gazette counts for notification within the meaning of the rule, but only the date when the public gets notified in the sense, the concerned Gazette is made available to the public. The date of release of the publication is the decisive date to make the notification effective. Printing of the official Gazette and stacking them without releasing to the public would not amount to notification at all ...... The respondents are taking up a stand that the petitioner is expected to be aware of the Withdrawal Notification and that the words publish in official Gazette and the words put up for sale to public are not synonymous and offering for sale to publish is a subsequent step which cannot be imported into the Act, and the respondents are expressing similar stands. They could not be of any avail at all to the respondents to get out of the legal implications flowing from want of due notification, as exemplified above. Printing the notification in the official Gazette, without making it available for circulation to the concerned public, or placing it for sale to the said public, would certainly not satisfy the idea of notification in the legal sense. The same view was taken by the Bombay High Court in GTC Industries Ltd. vs. Union of India 1987 (13) ECR 1161 and by Delhi High Court in Universal Cans and Containers vs. Union of India 1993 (10) ELT 23 (Del). 9. The following observations made in the case of B. K. Srinivasan & Ors. vs. State of Karnataka [1987]1SCR1054 , also support the view that we are taking : Whether law is viewed from the standpoint of the conscientious good man seeking to abide by the law or from the standpoint of Justice Holmess unconscientious bad man seeking to avoid the law, law must be known, that is to say, it must be so made it can be known. 10. Our attention was also drawn to the decisions of this Court in Pankaj Jain Agencies vs. Union of India & Ors. 1994ECR28(SC) and ITC Ltd. vs. Collector of Central Excise, Bombay 1996(86)ELT477(SC) but they are not helpful in deciding the question that arises in these cases. 11. We hold that a Central Excise Notification can be said to have been published, except when it is provided otherwise, when it is so issued as to make it known to the public. It would be a proper publication if it is published in such a manner that persons can, if they are so interested, acquaint themselves with its contents. If publication is through a Gazette then mere printing of it in the Gazette would not be enough. Unless the Gazette containing the notification is made available to the public, the notification cannot be said to have been duly published.
### Response:
1
### Explanation:
4. Sec. 38 of the act provides that all the rules made and notifications issued under the act shall be published in the official Gazette. So, the requirement of s. 38 is publication of the rules and the notifications in the official Gazette. The dictionary meaning of the word publish as given in Websters Comprehensive Dictionary, International Edition, is (1) To make known or announce publicly; promulgate; proclaim. (2) To print and issue to the public. (3) To communicate to a third person. According to the Legal Glossary, published by the Legislative Department, Ministry of Law, Justice and Company Affairs, Government of India in 1992, it means to make generally accessible or available; to place before or offer to public; to bring before the public for sale or distribution. Thus the word publish connotes not only an act of printing but also further action of issuing or making it available to the publiEven if we go by the dictionary meaning, the requirement of publishing the notifications would connote that what is intended to give notice or information to the public can be treated as published only when it is made available to the public so that they can know about it. The requirement of publishing the notifications in the official Gazette, which is an official journal or a newspaper containing public notices and other prescribed matters, also indicates that the word publish in s. 38 should be so interpreted.9. The following observations made in the case of B. K. Srinivasan & Ors. vs. State of Karnataka [1987]1SCR1054 , also support the view that we are taking :Whether law is viewed from the standpoint of the conscientious good man seeking to abide by the law or from the standpoint of Justice Holmess unconscientious bad man seeking to avoid the law, law must be known, that is to say, it must be so made it can be known.10. Our attention was also drawn to the decisions of this Court in Pankaj Jain Agencies vs. Union of India & Ors. 1994ECR28(SC) and ITC Ltd. vs. Collector of Central Excise, Bombay 1996(86)ELT477(SC) but they are not helpful in deciding the question that arises in these cases.11. We hold that a Central Excise Notification can be said to have been published, except when it is provided otherwise, when it is so issued as to make it known to the public. It would be a proper publication if it is published in such a manner that persons can, if they are so interested, acquaint themselves with its contents. If publication is through a Gazette then mere printing of it in the Gazette would not be enough. Unless the Gazette containing the notification is made available to the public, the notification cannot be said to have been duly published.
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Zila Parishad Kheri Vs. Hindustan Sugar Mills & Anr
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was a raw material from half a dozen Districts it could hardly be said from the point of view of business, that it was being carried on in the various Districts from where the raw material was being acquired.4. Before us it has been contended on behalf of the Zilla Parishad that the continuous and regular activity of buying sugarcane which extended for the period mentioned in Clause (a) of Section 121 of the Adhiniyam constituted carrying on of business in the rural areas from where the sugarcane was purchased. Reliance has been placed on a Bench decision of the East Punjab High Court in Chas, J. Webb Sons and Company Inc. Philadelphia v. Commissioner of Income-tax, East Punjab, 18 ITR 33 = (AIR 1951 Punj 347). There the assessee company which was incorporated in the United States of America was carrying on the business of manufacturing carpets in America. Its only business in British India was to purchase, through its agents in British India, wool as raw material for use in the manufacture of carpets. The Company was sought to be assessed in respect of its income from such purchases of raw material under Section 42 (3) of the Indian Income-tax Act, 1922. It was held that the mere purchase of raw material in British India was an operation within the meaning of Section 42 (3) of that Act and that the profits which arose out of such purchases were taxable. Section 42 of the Income-tax Act was a totally different provision. According to it all income, profits or gains accruing or arising whether directly or indirectly through or from any business connection in British India were to be deemed to be income accruing or arising within British India.It was further provided that in case of a business of which all the operations were not carried out in British India the profits and gains of the business deemed under the section to accrue or arise in British India were only such profits and gains as were reasonable attributable to that part of the operation carried out in British India. The High Court was of the view (which appears to be unexceptionable) that the word "operation" covered the purchase of wool as raw material for use in manufacturing carpets and that such a purchase was an operation carried out in the course of its business by a person or firm which manufactured the carpets. We are unable to see how any assistance can be derived from the above case for the purpose of deciding the meaning of the words "carrying on business" used in Section 121 (a) of the Adhiniyam. In Commr. of Income-tax, Bombay v. Ahmedbhai Umarbhai and Co., Bombay,1950 SCR 335 at p. 376 = (AIR 1950 SC 134 ) Mukherjea, J., (as he then was) observed as follows:-"A man may carry on the trade of a seller or purchaser of goods; he may be a manufacturer of goods or an exporter or importer of the same. Each of these would be a business within the meaning of the Act. Suppose, for example, that he combines all these activities and carried on a business which includes manufacturing, selling and also exporting and importing of goods. Can it not be said that each one of these activities is a part of the business which he carries on? I agree with Mr. Munshi that if a particular process or activity of a continuous character can be distinguished from other processes and if a separate profit can be ascertained and allotted in respect to the same, there is no reason why it should not be regarded as a part of the business which yields income or profits."These observations can hardly be of any avail to the Zilla Parishad. The buying of raw material in the shape of sugarcane may be a process or activity of a continuous character but even according to the test laid down by Mukherjea, J., which related to entirely different statutory provisions and facts it cannot be said that the company was making any separate profits or income by means of purchasing sugarcane. It is futile to refer to all the other cases on which learned counsel for the Zilla Parishad has relied as they are totally distinguishable on facts except to notice the decision in Zilla Parishad, Muzaffarnagar v. Jugal Kishore Ram Swarup, 1969 All LJ 24. There a firm had set up crushers in certain rural areas from where it purchased sugarcane. The sugarcane was crushed and converted into a juice. That juice was sent to the town of Miranpur for being pressed into sugar. The High Court was of the view that the juice which was called "Rab" was a saleable commodity in itself and was also a finished product. It was used in home consumption and could also be pressed for producing sugar. The firm was, therefore, working for gain in the places where that activity took place which was for making a profit. It was held that the circumstances and property tax was leviable in these circumstances on the firm because it carried on business in that place where it converted the sugarcane into Rab. The facts that have been stated clearly establish the distinguishing features from the present case. The sugarcane which was being purchased by the Company was not subjected to any such process by which any such commodity or finished product came into existence which by itself could earn profits. In our opinion the contention of the Zilla Parishad, if accepted, would lead to the astounding and extraordinary result that if a manufacturing concern continuously acquires raw material not only from different parts of India but also from other parts of the world it could be said that it was carrying on business in all those places from where the raw materials were acquired or purchased. We are unable to give any such wide connotation to the words "carrying on business", employed in Section 121 (a) of the Adhiniyam.
|
0[ds]These observations can hardly be of any avail to the Zilla Parishad. The buying of raw material in the shape of sugarcane may be a process or activity of a continuous character but even according to the test laid down by Mukherjea, J., which related to entirely different statutory provisions and facts it cannot be said that the company was making any separate profits or income by means of purchasing sugarcane. It is futile to refer to all the other cases on which learned counsel for the Zilla Parishad has relied as they are totally distinguishable on facts except to notice the decision in Zilla Parishad, Muzaffarnagar v. Jugal Kishore Ram Swarup, 1969 All LJ 24. There a firm had set up crushers in certain rural areas from where it purchased sugarcane. The sugarcane was crushed and converted into a juice. That juice was sent to the town of Miranpur for being pressed into sugar. The High Court was of the view that the juice which was called "Rab" was a saleable commodity in itself and was also a finished product. It was used in home consumption and could also be pressed for producing sugar. The firm was, therefore, working for gain in the places where that activity took place which was for making a profit. It was held that the circumstances and property tax was leviable in these circumstances on the firm because it carried on business in that place where it converted the sugarcane into Rab. The facts that have been stated clearly establish the distinguishing features from the present case. The sugarcane which was being purchased by the Company was not subjected to any such process by which any such commodity or finished product came into existence which by itself could earn profits. In our opinion the contention of the Zilla Parishad, if accepted, would lead to the astounding and extraordinary result that if a manufacturing concern continuously acquires raw material not only from different parts of India but also from other parts of the world it could be said that it was carrying on business in all those places from where the raw materials were acquired or purchased. We are unable to give any such wide connotation to the words "carrying on business", employed in Section 121 (a) of the Adhiniyam.
| 0 | 1,885 | 419 |
### 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:
was a raw material from half a dozen Districts it could hardly be said from the point of view of business, that it was being carried on in the various Districts from where the raw material was being acquired.4. Before us it has been contended on behalf of the Zilla Parishad that the continuous and regular activity of buying sugarcane which extended for the period mentioned in Clause (a) of Section 121 of the Adhiniyam constituted carrying on of business in the rural areas from where the sugarcane was purchased. Reliance has been placed on a Bench decision of the East Punjab High Court in Chas, J. Webb Sons and Company Inc. Philadelphia v. Commissioner of Income-tax, East Punjab, 18 ITR 33 = (AIR 1951 Punj 347). There the assessee company which was incorporated in the United States of America was carrying on the business of manufacturing carpets in America. Its only business in British India was to purchase, through its agents in British India, wool as raw material for use in the manufacture of carpets. The Company was sought to be assessed in respect of its income from such purchases of raw material under Section 42 (3) of the Indian Income-tax Act, 1922. It was held that the mere purchase of raw material in British India was an operation within the meaning of Section 42 (3) of that Act and that the profits which arose out of such purchases were taxable. Section 42 of the Income-tax Act was a totally different provision. According to it all income, profits or gains accruing or arising whether directly or indirectly through or from any business connection in British India were to be deemed to be income accruing or arising within British India.It was further provided that in case of a business of which all the operations were not carried out in British India the profits and gains of the business deemed under the section to accrue or arise in British India were only such profits and gains as were reasonable attributable to that part of the operation carried out in British India. The High Court was of the view (which appears to be unexceptionable) that the word "operation" covered the purchase of wool as raw material for use in manufacturing carpets and that such a purchase was an operation carried out in the course of its business by a person or firm which manufactured the carpets. We are unable to see how any assistance can be derived from the above case for the purpose of deciding the meaning of the words "carrying on business" used in Section 121 (a) of the Adhiniyam. In Commr. of Income-tax, Bombay v. Ahmedbhai Umarbhai and Co., Bombay,1950 SCR 335 at p. 376 = (AIR 1950 SC 134 ) Mukherjea, J., (as he then was) observed as follows:-"A man may carry on the trade of a seller or purchaser of goods; he may be a manufacturer of goods or an exporter or importer of the same. Each of these would be a business within the meaning of the Act. Suppose, for example, that he combines all these activities and carried on a business which includes manufacturing, selling and also exporting and importing of goods. Can it not be said that each one of these activities is a part of the business which he carries on? I agree with Mr. Munshi that if a particular process or activity of a continuous character can be distinguished from other processes and if a separate profit can be ascertained and allotted in respect to the same, there is no reason why it should not be regarded as a part of the business which yields income or profits."These observations can hardly be of any avail to the Zilla Parishad. The buying of raw material in the shape of sugarcane may be a process or activity of a continuous character but even according to the test laid down by Mukherjea, J., which related to entirely different statutory provisions and facts it cannot be said that the company was making any separate profits or income by means of purchasing sugarcane. It is futile to refer to all the other cases on which learned counsel for the Zilla Parishad has relied as they are totally distinguishable on facts except to notice the decision in Zilla Parishad, Muzaffarnagar v. Jugal Kishore Ram Swarup, 1969 All LJ 24. There a firm had set up crushers in certain rural areas from where it purchased sugarcane. The sugarcane was crushed and converted into a juice. That juice was sent to the town of Miranpur for being pressed into sugar. The High Court was of the view that the juice which was called "Rab" was a saleable commodity in itself and was also a finished product. It was used in home consumption and could also be pressed for producing sugar. The firm was, therefore, working for gain in the places where that activity took place which was for making a profit. It was held that the circumstances and property tax was leviable in these circumstances on the firm because it carried on business in that place where it converted the sugarcane into Rab. The facts that have been stated clearly establish the distinguishing features from the present case. The sugarcane which was being purchased by the Company was not subjected to any such process by which any such commodity or finished product came into existence which by itself could earn profits. In our opinion the contention of the Zilla Parishad, if accepted, would lead to the astounding and extraordinary result that if a manufacturing concern continuously acquires raw material not only from different parts of India but also from other parts of the world it could be said that it was carrying on business in all those places from where the raw materials were acquired or purchased. We are unable to give any such wide connotation to the words "carrying on business", employed in Section 121 (a) of the Adhiniyam.
### Response:
0
### Explanation:
These observations can hardly be of any avail to the Zilla Parishad. The buying of raw material in the shape of sugarcane may be a process or activity of a continuous character but even according to the test laid down by Mukherjea, J., which related to entirely different statutory provisions and facts it cannot be said that the company was making any separate profits or income by means of purchasing sugarcane. It is futile to refer to all the other cases on which learned counsel for the Zilla Parishad has relied as they are totally distinguishable on facts except to notice the decision in Zilla Parishad, Muzaffarnagar v. Jugal Kishore Ram Swarup, 1969 All LJ 24. There a firm had set up crushers in certain rural areas from where it purchased sugarcane. The sugarcane was crushed and converted into a juice. That juice was sent to the town of Miranpur for being pressed into sugar. The High Court was of the view that the juice which was called "Rab" was a saleable commodity in itself and was also a finished product. It was used in home consumption and could also be pressed for producing sugar. The firm was, therefore, working for gain in the places where that activity took place which was for making a profit. It was held that the circumstances and property tax was leviable in these circumstances on the firm because it carried on business in that place where it converted the sugarcane into Rab. The facts that have been stated clearly establish the distinguishing features from the present case. The sugarcane which was being purchased by the Company was not subjected to any such process by which any such commodity or finished product came into existence which by itself could earn profits. In our opinion the contention of the Zilla Parishad, if accepted, would lead to the astounding and extraordinary result that if a manufacturing concern continuously acquires raw material not only from different parts of India but also from other parts of the world it could be said that it was carrying on business in all those places from where the raw materials were acquired or purchased. We are unable to give any such wide connotation to the words "carrying on business", employed in Section 121 (a) of the Adhiniyam.
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Tata Motors Ltd Vs. Pharmaceutical Products Of India Ltd
|
Corporation Act, 1956 shall bar the jurisdiction of the Company Court in terms of Section 446 (1) of the Companies Act. Referring to Section 41 of the Life Insurance Corporation Act, 1956 it was stated that the Tribunal constituted under the LIC Act will have exclusive jurisdiction. It was opined:- "20. It is in view of the exclusive jurisdiction which sub-s. (2) of s. 446 of the Companies Act confers on the company Court to entertain or dispose of any suit or proceeding by or against a company or any claim made by or against it that the restriction referred to in sub-s. (1) has been imposed on the commencement of the proceedings or proceeding with such proceedings against a company after a winding-up order has been made. In view of s. 41 of the LIC Act the company Court has no jurisdiction to entertain and adjudicate upon any matter which the Tribunal is empowered to decide or determine under that Act. It is not disputed that the Tribunal has jurisdiction under the Act to entertain and decide matters raised in the petition filed by the Corporation under s. 15 of the LIC Act. It must follow that the consequential provisions of sub-s. (1) of s. 446 of the Companies Act will not operate on the proceedings which be pending before the Tribunal or which may be sought to be commenced before it." 26. What in this case, however, has been contended is that BIFR had no jurisdiction to make a scheme as envisaged under Section 391 of the Act. Even otherwise, `civil court has a definite connotation. The jurisdiction of the Company Court is now vested in the Tribunal. Therefore, it will be difficult to hold, in view of a changed situation, that Section 26 ousts the jurisdiction of the Company Court in totality. The decision, however, also says that the special statute shall prevail over the general rule. Although it may not be very relevant, we may notice that this Court in Dwarka Prasad Agarwal v. Ramesh Chander Agarwal, [(2003) 6 SCC 220] opined as under: - "22. The dispute between the parties was eminently a civil dispute and not a dispute under the provisions of the Companies Act. Section 9 of the Code of Civil Procedure confers jurisdiction upon the civil courts to determine all disputes of civil nature unless the same is barred under a statute either expressly or by necessary implication. Bar of jurisdiction of a civil court is not to be readily inferred. A provision seeking to bar jurisdiction of a civil court requires strict interpretation. The court, it is well settled, would normally lean in favour of construction, which would uphold retention of jurisdiction of the civil court. The burden of proof in this behalf shall be on the party who asserts that the civil courts jurisdiction is ousted. (See Sahebgouda v. Ogeppa) Even otherwise, the civil courts jurisdiction is not completely ousted under the Companies Act, 1956." We are, therefore, of the opinion that the judgment of the High Court cannot be sustained. We may furthermore notice that the decision of the learned single judge has been overruled by a Division Bench of the Bombay High Court in Ashok Organics Industries Ltd. v. Dena Bank (Company Petition No. 108 of 2006, disposed of on 25.1.2008). It is also not possible to harmonize the provisions of Sections 391 to 394 of the 1956 Act with the provisions of SICA. For the views we have taken, it is not necessary to consider the other contentions raised at the bar.27. The question, however, is what relief should be granted in view of the subsequent events. Various intervention applications have been filed. We do not intend to make any observation in regard thereto. We are, however, of the opinion that it is a fit case where we should exercise our jurisdiction under Section 142 of the Constitution of India to meet the object for which the Act has been enacted.28. We have been taken through the Scheme. The Scheme provides for not only entering into an arrangement as regards repayment of debts to secured creditors and unsecured creditors but also provides for a merger, subject of course, to an appropriate order being passed by BIFR. The question is as to whether such a Scheme could be placed for approval before BIFR. We are of the view that it could not be. Before BIFR could approve a scheme, the same must be drawn in terms of the provisions of the Act and not de hors the scheme. It is required to apply its own mind. The operating agency is supposed to make a scheme. The operating agency before the AAIFR took one stand; before us it has taken another. According to it, it was not involved in the preparation of the Scheme. It had no occasion to apply its own mind. Furthermore, after the learned Single Judge passed its order, AAIFR disposed of the appeal only in terms of the order of the High Court stating:- "In view of IDBIs recommendation of the revival cum merger proposal submitted by PPIL, which is in accordance with Bombay High Courts order dated 13.2.2006, we set aside the impugned order dated 27.10.2004 and direct BIFR to consider the scheme vetted by the OA within a period of three months from the date of this order and take necessary further steps for the revival of the appellant company in accordance with law." 29. The order of BIFR dated 1st May, 2007 also clearly show that it has granted its approval in view of the observations made by the appellate authority. It might have done so keeping in view the doctrine of judicial discipline in mind.30. The order of BIFR is not an outcome of any pre-application of mind. There is no finding that it has taken into consideration all the relevant facts. There is nothing to show that such an order is fair or reasonable or meets the requirements of law.
|
1[ds]20. SICA is a special statute. It is a self contained Code. The jurisdiction of the Company Judge in a case where reference had been made to BIFR would be subject to the provisions of SICA. We may, at this stage, notice the effect of SICAthe other Acts, as has been noticed by this Court in some of itsa case, however, whereproceedings are initiated in terms of recommendations made by BIFR or AAIFR, as the case may be, no such petition is required to be presented. Section 443 lays down the power of a court on hearing petition; clause (d) of(1) whereof provides for a power to make an order for winding up of the company with or without costs or any other order that it thinks fit. Section 444 lays down the consequences of theorder. In terms of Section 446 of the Act, in the event of passing of aorder or appointment of liquidator as Provisional Liquidator, no suit or legal proceeding would commence or if pending at the date of theorder, shall not be proceeded with against the company except by leave of the court and subject to such terms as the court may impose.(2) of Section 446 provides for a non obstante clause, in terms whereof the Company Court shall have jurisdiction to entertain or dispose of any suit or proceedings specified therein. Section 451 lays down general provisions as to liquidators.The jurisdiction of civil court is, thus, barred in respect of any matter for which the appellate authority or the Board is empowered. The High Court may not be a civil court but its jurisdiction in a case of this nature is limited.What in this case, however, has been contended is that BIFR had no jurisdiction to make a scheme as envisaged under Section 391 of the Act. Even otherwise, `civil court has a definite connotation. The jurisdiction of the Company Court is now vested in the Tribunal. Therefore, it will be difficult to hold, in view of a changed situation, that Section 26 ousts the jurisdiction of the Company Court in totality. The decision, however, also says that the special statute shall prevail over the general rule. Although it may not be very relevant, we may notice that this Court in Dwarka Prasad Agarwal v. Ramesh Chander Agarwal, [(2003) 6 SCC 220] opined asThe dispute between the parties was eminently a civil dispute and not a dispute under the provisions of the Companies Act. Section 9 of the Code of Civil Procedure confers jurisdiction upon the civil courts to determine all disputes of civil nature unless the same is barred under a statute either expressly or by necessary implication. Bar of jurisdiction of a civil court is not to be readily inferred. A provision seeking to bar jurisdiction of a civil court requires strict interpretation. The court, it is well settled, would normally lean in favour of construction, which would uphold retention of jurisdiction of the civil court. The burden of proof in this behalf shall be on the party who asserts that the civil courts jurisdiction is ousted. (See Sahebgouda v. Ogeppa) Even otherwise, the civil courts jurisdiction is not completely ousted under the Companies Act,are, therefore, of the opinion that the judgment of the High Court cannot be sustained. We may furthermore notice that the decision of the learned single judge has been overruled by a Division Bench of the Bombay High Court in Ashok Organics Industries Ltd. v. Dena Bank (Company Petition No. 108 of 2006, disposed of on 25.1.2008). It is also not possible to harmonize the provisions of Sections 391 to 394 of the 1956 Act with the provisions of SICA. For the views we have taken, it is not necessary to consider the other contentions raised at the bar.27. The question, however, is whatrelief should be granted in view of the subsequent events.Various intervention applications have been filed. We do not intend to make any observation in regard thereto. We are, however, of the opinion that it is a fit case where we should exercise our jurisdiction under Section 142 of the Constitution of India to meet the object for which the Act has been enacted.28. We have been taken through the Scheme. The Scheme provides for not only entering into an arrangement as regards repayment of debts to secured creditors and unsecured creditors but also provides for a merger, subject of course, to an appropriate order being passed by BIFR. The question is as to whether such a Scheme could be placed for approval before BIFR. We are of the view that it could not be. Before BIFR could approve a scheme, the same must be drawn in terms of the provisions of the Act and not de hors the scheme. It is required to apply its own mind. The operating agency is supposed to make a scheme. The operating agency before the AAIFR took one stand; before us it has taken another. According to it, it was not involved in the preparation of the Scheme. It had no occasion to apply its own mind. Furthermore, after the learned Single Judge passed its order, AAIFR disposed of the appeal only in terms of the order of the High Courtview of IDBIs recommendation of the revival cum merger proposal submitted by PPIL, which is in accordance with Bombay High Courts order dated 13.2.2006, we set aside the impugned order dated 27.10.2004 and direct BIFR to consider the scheme vetted by the OA within a period of three months from the date of this order and take necessary further steps for the revival of the appellant company in accordance with law.The order of BIFR dated 1st May, 2007 also clearly show that it has granted its approval in view of the observations made by the appellate authority. It might have done so keeping in view the doctrine of judicial discipline in mind.30. The order of BIFR is not an outcome of anyof mind. There is no finding that it has taken into consideration all the relevant facts. There is nothing to show that such an order is fair or reasonable or meets the requirements of law.31. We are, therefore, of the opinion that not only the judgment of the High Court but also the orders of BIFR as also the AAIFR should be set aside and the matter should be remitted to the BIFR so as to enable it to proceed in accordance with the provisions of SICA afresh.
| 1 | 8,358 | 1,196 |
### 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:
Corporation Act, 1956 shall bar the jurisdiction of the Company Court in terms of Section 446 (1) of the Companies Act. Referring to Section 41 of the Life Insurance Corporation Act, 1956 it was stated that the Tribunal constituted under the LIC Act will have exclusive jurisdiction. It was opined:- "20. It is in view of the exclusive jurisdiction which sub-s. (2) of s. 446 of the Companies Act confers on the company Court to entertain or dispose of any suit or proceeding by or against a company or any claim made by or against it that the restriction referred to in sub-s. (1) has been imposed on the commencement of the proceedings or proceeding with such proceedings against a company after a winding-up order has been made. In view of s. 41 of the LIC Act the company Court has no jurisdiction to entertain and adjudicate upon any matter which the Tribunal is empowered to decide or determine under that Act. It is not disputed that the Tribunal has jurisdiction under the Act to entertain and decide matters raised in the petition filed by the Corporation under s. 15 of the LIC Act. It must follow that the consequential provisions of sub-s. (1) of s. 446 of the Companies Act will not operate on the proceedings which be pending before the Tribunal or which may be sought to be commenced before it." 26. What in this case, however, has been contended is that BIFR had no jurisdiction to make a scheme as envisaged under Section 391 of the Act. Even otherwise, `civil court has a definite connotation. The jurisdiction of the Company Court is now vested in the Tribunal. Therefore, it will be difficult to hold, in view of a changed situation, that Section 26 ousts the jurisdiction of the Company Court in totality. The decision, however, also says that the special statute shall prevail over the general rule. Although it may not be very relevant, we may notice that this Court in Dwarka Prasad Agarwal v. Ramesh Chander Agarwal, [(2003) 6 SCC 220] opined as under: - "22. The dispute between the parties was eminently a civil dispute and not a dispute under the provisions of the Companies Act. Section 9 of the Code of Civil Procedure confers jurisdiction upon the civil courts to determine all disputes of civil nature unless the same is barred under a statute either expressly or by necessary implication. Bar of jurisdiction of a civil court is not to be readily inferred. A provision seeking to bar jurisdiction of a civil court requires strict interpretation. The court, it is well settled, would normally lean in favour of construction, which would uphold retention of jurisdiction of the civil court. The burden of proof in this behalf shall be on the party who asserts that the civil courts jurisdiction is ousted. (See Sahebgouda v. Ogeppa) Even otherwise, the civil courts jurisdiction is not completely ousted under the Companies Act, 1956." We are, therefore, of the opinion that the judgment of the High Court cannot be sustained. We may furthermore notice that the decision of the learned single judge has been overruled by a Division Bench of the Bombay High Court in Ashok Organics Industries Ltd. v. Dena Bank (Company Petition No. 108 of 2006, disposed of on 25.1.2008). It is also not possible to harmonize the provisions of Sections 391 to 394 of the 1956 Act with the provisions of SICA. For the views we have taken, it is not necessary to consider the other contentions raised at the bar.27. The question, however, is what relief should be granted in view of the subsequent events. Various intervention applications have been filed. We do not intend to make any observation in regard thereto. We are, however, of the opinion that it is a fit case where we should exercise our jurisdiction under Section 142 of the Constitution of India to meet the object for which the Act has been enacted.28. We have been taken through the Scheme. The Scheme provides for not only entering into an arrangement as regards repayment of debts to secured creditors and unsecured creditors but also provides for a merger, subject of course, to an appropriate order being passed by BIFR. The question is as to whether such a Scheme could be placed for approval before BIFR. We are of the view that it could not be. Before BIFR could approve a scheme, the same must be drawn in terms of the provisions of the Act and not de hors the scheme. It is required to apply its own mind. The operating agency is supposed to make a scheme. The operating agency before the AAIFR took one stand; before us it has taken another. According to it, it was not involved in the preparation of the Scheme. It had no occasion to apply its own mind. Furthermore, after the learned Single Judge passed its order, AAIFR disposed of the appeal only in terms of the order of the High Court stating:- "In view of IDBIs recommendation of the revival cum merger proposal submitted by PPIL, which is in accordance with Bombay High Courts order dated 13.2.2006, we set aside the impugned order dated 27.10.2004 and direct BIFR to consider the scheme vetted by the OA within a period of three months from the date of this order and take necessary further steps for the revival of the appellant company in accordance with law." 29. The order of BIFR dated 1st May, 2007 also clearly show that it has granted its approval in view of the observations made by the appellate authority. It might have done so keeping in view the doctrine of judicial discipline in mind.30. The order of BIFR is not an outcome of any pre-application of mind. There is no finding that it has taken into consideration all the relevant facts. There is nothing to show that such an order is fair or reasonable or meets the requirements of law.
### Response:
1
### Explanation:
such petition is required to be presented. Section 443 lays down the power of a court on hearing petition; clause (d) of(1) whereof provides for a power to make an order for winding up of the company with or without costs or any other order that it thinks fit. Section 444 lays down the consequences of theorder. In terms of Section 446 of the Act, in the event of passing of aorder or appointment of liquidator as Provisional Liquidator, no suit or legal proceeding would commence or if pending at the date of theorder, shall not be proceeded with against the company except by leave of the court and subject to such terms as the court may impose.(2) of Section 446 provides for a non obstante clause, in terms whereof the Company Court shall have jurisdiction to entertain or dispose of any suit or proceedings specified therein. Section 451 lays down general provisions as to liquidators.The jurisdiction of civil court is, thus, barred in respect of any matter for which the appellate authority or the Board is empowered. The High Court may not be a civil court but its jurisdiction in a case of this nature is limited.What in this case, however, has been contended is that BIFR had no jurisdiction to make a scheme as envisaged under Section 391 of the Act. Even otherwise, `civil court has a definite connotation. The jurisdiction of the Company Court is now vested in the Tribunal. Therefore, it will be difficult to hold, in view of a changed situation, that Section 26 ousts the jurisdiction of the Company Court in totality. The decision, however, also says that the special statute shall prevail over the general rule. Although it may not be very relevant, we may notice that this Court in Dwarka Prasad Agarwal v. Ramesh Chander Agarwal, [(2003) 6 SCC 220] opined asThe dispute between the parties was eminently a civil dispute and not a dispute under the provisions of the Companies Act. Section 9 of the Code of Civil Procedure confers jurisdiction upon the civil courts to determine all disputes of civil nature unless the same is barred under a statute either expressly or by necessary implication. Bar of jurisdiction of a civil court is not to be readily inferred. A provision seeking to bar jurisdiction of a civil court requires strict interpretation. The court, it is well settled, would normally lean in favour of construction, which would uphold retention of jurisdiction of the civil court. The burden of proof in this behalf shall be on the party who asserts that the civil courts jurisdiction is ousted. (See Sahebgouda v. Ogeppa) Even otherwise, the civil courts jurisdiction is not completely ousted under the Companies Act,are, therefore, of the opinion that the judgment of the High Court cannot be sustained. We may furthermore notice that the decision of the learned single judge has been overruled by a Division Bench of the Bombay High Court in Ashok Organics Industries Ltd. v. Dena Bank (Company Petition No. 108 of 2006, disposed of on 25.1.2008). It is also not possible to harmonize the provisions of Sections 391 to 394 of the 1956 Act with the provisions of SICA. For the views we have taken, it is not necessary to consider the other contentions raised at the bar.27. The question, however, is whatrelief should be granted in view of the subsequent events.Various intervention applications have been filed. We do not intend to make any observation in regard thereto. We are, however, of the opinion that it is a fit case where we should exercise our jurisdiction under Section 142 of the Constitution of India to meet the object for which the Act has been enacted.28. We have been taken through the Scheme. The Scheme provides for not only entering into an arrangement as regards repayment of debts to secured creditors and unsecured creditors but also provides for a merger, subject of course, to an appropriate order being passed by BIFR. The question is as to whether such a Scheme could be placed for approval before BIFR. We are of the view that it could not be. Before BIFR could approve a scheme, the same must be drawn in terms of the provisions of the Act and not de hors the scheme. It is required to apply its own mind. The operating agency is supposed to make a scheme. The operating agency before the AAIFR took one stand; before us it has taken another. According to it, it was not involved in the preparation of the Scheme. It had no occasion to apply its own mind. Furthermore, after the learned Single Judge passed its order, AAIFR disposed of the appeal only in terms of the order of the High Courtview of IDBIs recommendation of the revival cum merger proposal submitted by PPIL, which is in accordance with Bombay High Courts order dated 13.2.2006, we set aside the impugned order dated 27.10.2004 and direct BIFR to consider the scheme vetted by the OA within a period of three months from the date of this order and take necessary further steps for the revival of the appellant company in accordance with law.The order of BIFR dated 1st May, 2007 also clearly show that it has granted its approval in view of the observations made by the appellate authority. It might have done so keeping in view the doctrine of judicial discipline in mind.30. The order of BIFR is not an outcome of anyof mind. There is no finding that it has taken into consideration all the relevant facts. There is nothing to show that such an order is fair or reasonable or meets the requirements of law.31. We are, therefore, of the opinion that not only the judgment of the High Court but also the orders of BIFR as also the AAIFR should be set aside and the matter should be remitted to the BIFR so as to enable it to proceed in accordance with the provisions of SICA afresh.
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State of Uttar Pradesh Vs. Pt. Chandra Bhushan Misra
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to the appellate court essential to the rights of the parties".If the decision on the preliminary point was reversed by the appellate court. The Code of 1859 was repealed and replaced by the Code of 1877. Section 562 of the 1877 Code was substantially in the same terms as section 351 of the 1859 Code. The Code of 1882 was repealed and replaced by the Code of Civil Procedure 1908. Order XLI Rule 23 of the 1908 Code also provided for the remand of a case to the lower court by the appellate court where the suit had been disposed of upon a preliminary point and the decision of such preliminary point was reversed in appeal by the appellate court. In exercise of the powers vested in it under section 122 of the Code of Civil Procedure 1908, the Allahabad High Court amend ed the provisions of Order XLI Rule 23 so as to provide for the remand of a case by the appellate court to the trial court, not only when the suit had been decided upon a preliminary point and the decision was reversed in appeal, but also whenever the appellate court considered it necessary in the interest of justice. The question for consideration in this appeal is whether the power to grant refund of court fees under section 13 of the Court Fees Act 1870 was attracted to a case w here the appellate court remanded the case to the lower court in the interest of justice as provided by the provisions of Order XLI Rule 23 as amended by the High Court of Allahabad.In order to answer the question a reference is necessary to section 158 of the Code of Civil Procedure 1908. It was as follows:"158. In every enactment or notification passed or issued before the commencement of this Code in which reference is made to or to any Chapter or section of Act VIII of 1859 or any Code of Civil Procedure or any Act amending the same or any other enactment hereby repealed, such reference shall, so far as may be practicable, be taken to be made to this Code or to its corresponding Part, Order, Section or rule".It follows from Section 158 that reference in Section 13 of the Court Fees Act 1879 to Section 351 of the Code of Civil Procedure 1859 has to be read as reference to Order XLI Rule 23 of the Code of Civil Procedure 1908. The submission of the learned counsel was that the reference to any provision of the Code of Civil Procedure 1908 pursuant to section 158 of the Code must be to provision occurring in the body of the main code consisting of the provisions from section 1 to section 158 and not to the provisions of the rules in the first schedule. He further submitted that even if reference to the rules in the first schedule was permissible it should only be to the rules as enacted by the legislature itself and not as amended by the High Court. The first part of the submission of the learned counsel has to be rejected straightaway having regard to the express reference to Order and Rule in section 158 of the Code of Civil Procedure 1908. The second part of the submission requires a slightly closer examination. Section 2(1) of the Code of Civil Procedure 1908 defined "Code" as including "Rules". Section 2(18) defined "Rules" as meaning "Rules and forms contained in the first schedule or made under section 122 or section 125". Section 121 of the 1908 Code declared that the rules in the first schedule shall have effect "as if enacted in the body of the code until annulled or altered in accordance with the provisions of part X of the Code" (section 121 to 131). Section 122 enabled the High Court to make rules, from time to time "regulating their own procedure or the procedure of the Civil code subject to their superintendence, and made by such rules, annual, alter or add to all or any of the rules in the first schedule". Section 126 made the rules made by the High Court subject to the previous approval of the Government of the State. Section 127 provided that the rules so made and approved shall have the same force and effect as if they had been contained in the first schedule. These provisions make it abundantly clear that the rules made by a High Court altering the rules contained in the first schedule as originally enacted by the legislature shall have the same force and effect as if they had been contained in the first schedule and therefore, necessarily became part of the Code for all purposes. That is the clear effect of the definition of the expressions "Co de" and "Rules" and sections 121, 122 and 127. It does not appear to be necessary to embark upon a detailed examination of each one of these provisions, since the position appears to us to be very clear. We, therefore, agree with the view expressed by Pathak and Kirty JJ., in Chandra Bhushan Misra v. Smt. Javatri Devi(1), regarding the effect of section 158 of the Code of Civil Procedure and sections 2(1) to 2(18), 121, 122 and 127.Jagdish Sahai J., was inclined to the view that the amendments made by the High Court were only fictionally embodied in the Code and that the reference to section 351 of the Code of 1859 in section 13 of the Court Fees Act was to be construed as a reference only to the provisions of Order XLI Rule 2 3, as originally passed by the Legislature and not as amended by the High Court. In our opinion the view of Jagdish Sahai, J. does not give full effect to section 127 of the Civil Procedure Code 1908 which provided that the rules made by the High Court shall have the same force and effect as if they had been contained in the first schedule.
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0[ds]These provisions make it abundantly clear that the rules made by a High Court altering the rules contained in the first schedule as originally enacted by the legislature shall have the same force and effect as if they had been contained in the first schedule and therefore, necessarily became part of the Code for all purposes. That is the clear effect of the definition of the expressions "Co de" and "Rules" and sections 121, 122 and 127. It does not appear to be necessary to embark upon a detailed examination of each one of these provisions, since the position appears to us to be very clear. We, therefore, agree with the view expressed by Pathak and Kirty JJ., in Chandra Bhushan Misra v. Smt. Javatri Devi(1), regarding the effect of section 158 of theCode of Civil Procedure and sections 2(1) to 2(18), 121, 122 and 127.Jagdish Sahai J., was inclined to the view that the amendments made by the High Court were only fictionally embodied in the Code and that the reference to section 351 of the Code of 1859 in section 13 of the Court Fees Act was to be construed as a reference only to the provisions of Order XLI Rule 2 3, as originally passed by the Legislature and not as amended by the High Court. In our opinion the view of Jagdish Sahai, J. does not give full effect to section 127 of the Civil Procedure Code 1908 which provided that the rules made by the High Court shall have the same force and effect as if they had been contained in the first schedule.
| 0 | 1,592 | 304 |
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Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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to the appellate court essential to the rights of the parties".If the decision on the preliminary point was reversed by the appellate court. The Code of 1859 was repealed and replaced by the Code of 1877. Section 562 of the 1877 Code was substantially in the same terms as section 351 of the 1859 Code. The Code of 1882 was repealed and replaced by the Code of Civil Procedure 1908. Order XLI Rule 23 of the 1908 Code also provided for the remand of a case to the lower court by the appellate court where the suit had been disposed of upon a preliminary point and the decision of such preliminary point was reversed in appeal by the appellate court. In exercise of the powers vested in it under section 122 of the Code of Civil Procedure 1908, the Allahabad High Court amend ed the provisions of Order XLI Rule 23 so as to provide for the remand of a case by the appellate court to the trial court, not only when the suit had been decided upon a preliminary point and the decision was reversed in appeal, but also whenever the appellate court considered it necessary in the interest of justice. The question for consideration in this appeal is whether the power to grant refund of court fees under section 13 of the Court Fees Act 1870 was attracted to a case w here the appellate court remanded the case to the lower court in the interest of justice as provided by the provisions of Order XLI Rule 23 as amended by the High Court of Allahabad.In order to answer the question a reference is necessary to section 158 of the Code of Civil Procedure 1908. It was as follows:"158. In every enactment or notification passed or issued before the commencement of this Code in which reference is made to or to any Chapter or section of Act VIII of 1859 or any Code of Civil Procedure or any Act amending the same or any other enactment hereby repealed, such reference shall, so far as may be practicable, be taken to be made to this Code or to its corresponding Part, Order, Section or rule".It follows from Section 158 that reference in Section 13 of the Court Fees Act 1879 to Section 351 of the Code of Civil Procedure 1859 has to be read as reference to Order XLI Rule 23 of the Code of Civil Procedure 1908. The submission of the learned counsel was that the reference to any provision of the Code of Civil Procedure 1908 pursuant to section 158 of the Code must be to provision occurring in the body of the main code consisting of the provisions from section 1 to section 158 and not to the provisions of the rules in the first schedule. He further submitted that even if reference to the rules in the first schedule was permissible it should only be to the rules as enacted by the legislature itself and not as amended by the High Court. The first part of the submission of the learned counsel has to be rejected straightaway having regard to the express reference to Order and Rule in section 158 of the Code of Civil Procedure 1908. The second part of the submission requires a slightly closer examination. Section 2(1) of the Code of Civil Procedure 1908 defined "Code" as including "Rules". Section 2(18) defined "Rules" as meaning "Rules and forms contained in the first schedule or made under section 122 or section 125". Section 121 of the 1908 Code declared that the rules in the first schedule shall have effect "as if enacted in the body of the code until annulled or altered in accordance with the provisions of part X of the Code" (section 121 to 131). Section 122 enabled the High Court to make rules, from time to time "regulating their own procedure or the procedure of the Civil code subject to their superintendence, and made by such rules, annual, alter or add to all or any of the rules in the first schedule". Section 126 made the rules made by the High Court subject to the previous approval of the Government of the State. Section 127 provided that the rules so made and approved shall have the same force and effect as if they had been contained in the first schedule. These provisions make it abundantly clear that the rules made by a High Court altering the rules contained in the first schedule as originally enacted by the legislature shall have the same force and effect as if they had been contained in the first schedule and therefore, necessarily became part of the Code for all purposes. That is the clear effect of the definition of the expressions "Co de" and "Rules" and sections 121, 122 and 127. It does not appear to be necessary to embark upon a detailed examination of each one of these provisions, since the position appears to us to be very clear. We, therefore, agree with the view expressed by Pathak and Kirty JJ., in Chandra Bhushan Misra v. Smt. Javatri Devi(1), regarding the effect of section 158 of the Code of Civil Procedure and sections 2(1) to 2(18), 121, 122 and 127.Jagdish Sahai J., was inclined to the view that the amendments made by the High Court were only fictionally embodied in the Code and that the reference to section 351 of the Code of 1859 in section 13 of the Court Fees Act was to be construed as a reference only to the provisions of Order XLI Rule 2 3, as originally passed by the Legislature and not as amended by the High Court. In our opinion the view of Jagdish Sahai, J. does not give full effect to section 127 of the Civil Procedure Code 1908 which provided that the rules made by the High Court shall have the same force and effect as if they had been contained in the first schedule.
### Response:
0
### Explanation:
These provisions make it abundantly clear that the rules made by a High Court altering the rules contained in the first schedule as originally enacted by the legislature shall have the same force and effect as if they had been contained in the first schedule and therefore, necessarily became part of the Code for all purposes. That is the clear effect of the definition of the expressions "Co de" and "Rules" and sections 121, 122 and 127. It does not appear to be necessary to embark upon a detailed examination of each one of these provisions, since the position appears to us to be very clear. We, therefore, agree with the view expressed by Pathak and Kirty JJ., in Chandra Bhushan Misra v. Smt. Javatri Devi(1), regarding the effect of section 158 of theCode of Civil Procedure and sections 2(1) to 2(18), 121, 122 and 127.Jagdish Sahai J., was inclined to the view that the amendments made by the High Court were only fictionally embodied in the Code and that the reference to section 351 of the Code of 1859 in section 13 of the Court Fees Act was to be construed as a reference only to the provisions of Order XLI Rule 2 3, as originally passed by the Legislature and not as amended by the High Court. In our opinion the view of Jagdish Sahai, J. does not give full effect to section 127 of the Civil Procedure Code 1908 which provided that the rules made by the High Court shall have the same force and effect as if they had been contained in the first schedule.
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CENTRAL BANK OF INDIA & ORS Vs. TARA CHAND
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amendment made provision for situations similar to the one in the instant case. 32. In the absence of any particular provision for payment of pension to those who opted for BOBEVRS-2001 other than Regulation 11(ii) of the Scheme, we are once again left to fall back on the Pension Regulations, 1995, and the amended provisions of Regulation 28 which brings within the scope of Superannuation Pension employees who opted for the Voluntary Retirement Scheme, which will be clear from the Explanatory Memorandum. However, the period of qualifying service has been retained as 15 years for those opting for BOBEVRS-2001 and is treated differently from premature retirement where the minimum period of qualifying service has been fixed at 10 years in keeping with Regulation 14 of the Pension Regulations, 1995. 33. We are, therefore, of the view that not having completed the required length of qualifying service as provided under Regulation 28 of the 1995 Regulations, the respondent was not eligible for pension under the Pension Regulations, 1995, of the appellant Bank.? 15. The above judgment was subsequently followed in Regional Manager, Punjab National Bank and another vs. Dharam Pal Singh and Punjab National Bank and others vs. Ram Kishan (supra).16. The judgment on which much reliance has been placed by the learned counsel for the respondent is Bank of India and another vs. K. Mohandas and others (supra). The issue arose for consideration in the above case has been noticed in paragraph 24 of the judgment, which is to the following effect: ?24. The principal question that falls for our determination is: whether the employees (having completed 20 years of service) of these banks (Bank of India, Punjab National Bank, Punjab & Sind Bank, Union Bank of India and United Bank of India) who had opted for voluntary retirement under VRS 2000 are entitled to addition of five years of notional service in calculating the length of service for the purpose of the said Scheme as per Regulation 29(5) of Pension Regulations, 1995??17. In the above case, the Scheme was noted as VRS 2000. Under the aforesaid Scheme eligibility was to employee who had rendered minimum of 15 years of service or completed 40 years of age. In the above case, the judgment of this Court in Bank of Baroda and others vs. Ganpat Singh Deora (supra) was relied by the Bank, which judgment was noticed and this Court laid down following in paragraphs 61 and 63: ?61. The observations made by this Court in Bank of Baroda (2009 (3) SCC 217 ) which have been quoted above and relied upon by the banks in support of their contention have to be understood in the factual backdrop namely, that the employee had completed only 13 years of service and, was not eligible for the pension under the Pension Regulations, 1995 and for the benefit of addition of five years to qualifying service under Regulation 29(5), an employee must have completed 20 years of service. The question therein was not identical in form with the question here to be decided. 63. The decision of this Court in Bank of Baroda is, thus, clearly distinguishable as the employee therein had not completed qualifying service much less 20 years of service for being eligible to the weightage under Regulation 29(5) and cannot be applied to the present controversy nor does that matter decide the question here to be decided in the present group of matters.? 18. The judgment of Bank of Baroda and others vs. Ganpat Singh Deora (supra) was not departed with but distinguished on the facts. The judgment in Bank of India and another vs. K. Mohandas and others (supra) is clearly distinguishable and is not attracted.19. Dr. Singhvi has placed much reliance on the judgment of this Court in National Insurance Company Limited and another vs. Kirpal Singh, (2014) 5 SCC 189. In the above case, this Court had occasion to consider the SVRS Scheme, 2004. Under the General Insurance Business (Nationalisation) Act, 1972, the eligibility of the Scheme was confined to those employees who have attained the age of 40 years and completed 10 years of qualifying service as on the date of notification. Clause 6 of Scheme, 2004 subclause 1(c) provided that pension shall be payable as per the General Insurance (Employees?) Pension Scheme, 1995. The Scheme, which was considered in the above case in Bank of Baroda(supra), is pari materia to the Scheme of the Central Bank of India, 2001. We feel ourselves bound by judgment of this Court in Bank of Baroda vs. Ganpat Singh Deora (supra), which judgment is directly on the similar Regulations and the Scheme. There being two Judge Bench judgment on the similar Regulations and Scheme, we are not inclined to accede to the request of the learned counsel for the respondent that the matter needs to be referred to a larger Bench to consider the Bank of Baroda vs. Ganpat Singh Deora and National Insurance vs. Kirpal Singh. The judgment of two Judge Bench in National Insurance vs. Kirpal Singh (supra) being on different Regulations and Scheme, we rest our judgment following two Judge Bench judgment of this Court in Bank of Baroda vs Ganpat Singh Deora (supra). 20. In view of what we have said above, we are of the view that the High Court has not correctly interpreted the Scheme and the Regulations. On the submission of the learned counsel for the respondent in the facts of the present case that this Court may not interfere with the impugned judgment since the respondent is waiting for the last 18 years to receive pension, we are of the view that when the Court has to examine interpretation of a statutory Regulation, Scheme and the benefits to be extended to the employees, statutory regime in the Scheme has to be adhered to and with regard to the case of one individual, no exception can be made. We, thus, do not accept the above submission of the learned counsel for the respondent
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1[ds]9. It is true that as per Clause 4 any employee who has 15 years of service or completed 40 years of age is eligible to apply for voluntary retirement under the Scheme. There is no dispute that the respondent was eligible to apply for voluntary retirement, otherbenefits under the Scheme have been extended to the respondent and only limited issue in the present appeal is entitlement of the respondent for pension. Clause 6(ii), which is relevant provision regarding entitlement of the claim provides that ?Pension (including commuted value of pension) as per Central Bank of India (Employees?) Pension Regulations, 1995……? Thus, payment of pension under the Scheme has to be as per Pension Regulations, 1995.Voluntary retirement in the case of respondent is not retirement which is covered within the definition of Clause 2(y) on strict interpretation of definition clause. Furthermore, as clear from the opening words, the said qualifying service is ?subject to the other conditions contained in Regulations?. Chapter V of the Regulations, 1995 deals with classes of pension. Different classes of pension include superannuation pension, pension on voluntary retirement, invalid pension, compassionate allowance, premature retirement pension and compulsory retirement pension. Classes of pension specifically defined in Chapter V and in a sense retirement under Voluntary Retirement Scheme was not contemplated when the Regulations were made in 1995. Regulation 28 was amended in the year 2002 w.e.f. 01.09.2000 whereby an employee who opts for retirement before superannuation, but after rendering service for a minimum period of 15 years was also entitled for pension. The respondent is not covered by proviso to Regulation 28. As noted above, as per Clause 6(ii) of the Scheme 2001 entitlement being on the basis of Pension Regulations, 1995, the respondent shall be entitled only for pension if he falls in any of the classes of pension in Chapter V. We may notice that proviso to Regulation 28 although was amended w.e.f. 01.09.2000 but it was clarified by Circular dated 31.01.2001 that the employees, who opted for pension but completed minimum 15 years of service and opt for voluntary retirement under this Scheme would also be eligible for pro-rata pension.The judgment of Bank of Baroda and others vs. Ganpat Singh Deora (supra) was not departed with but distinguished on the facts. The judgment in Bank of India and another vs. K. Mohandas and others (supra) is clearly distinguishable and is notScheme, which was considered in the above case in Bank of Baroda(supra), is pari materia to the Scheme of the Central Bank of India, 2001. We feel ourselves bound by judgment of this Court in Bank of Baroda vs. Ganpat Singh Deora (supra), which judgment is directly on the similar Regulations and the Scheme. There being two Judge Bench judgment on the similar Regulations and Scheme, we are not inclined to accede to the request of the learned counsel for the respondent that the matter needs to be referred to a larger Bench to consider the Bank of Baroda vs. Ganpat Singh Deora and National Insurance vs. Kirpal Singh. The judgment of two Judge Bench in National Insurance vs. Kirpal Singh (supra) being on different Regulations and Scheme, we rest our judgment following two Judge Bench judgment of this Court in Bank of Baroda vs Ganpat Singh Deora (supra). 20. In view of what we have said above, we are of the view that the High Court has not correctly interpreted the Scheme and the Regulations. On the submission of the learned counsel for the respondent in the facts of the present case that this Court may not interfere with the impugned judgment since the respondent is waiting for the last 18 years to receive pension, we are of the view that when the Court has to examine interpretation of a statutory Regulation, Scheme and the benefits to be extended to the employees, statutory regime in the Scheme has to be adhered to and with regard to the case of one individual, no exception can be made. We, thus, do not accept the above submission of the learned counsel for the respondent
| 1 | 4,285 | 763 |
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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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amendment made provision for situations similar to the one in the instant case. 32. In the absence of any particular provision for payment of pension to those who opted for BOBEVRS-2001 other than Regulation 11(ii) of the Scheme, we are once again left to fall back on the Pension Regulations, 1995, and the amended provisions of Regulation 28 which brings within the scope of Superannuation Pension employees who opted for the Voluntary Retirement Scheme, which will be clear from the Explanatory Memorandum. However, the period of qualifying service has been retained as 15 years for those opting for BOBEVRS-2001 and is treated differently from premature retirement where the minimum period of qualifying service has been fixed at 10 years in keeping with Regulation 14 of the Pension Regulations, 1995. 33. We are, therefore, of the view that not having completed the required length of qualifying service as provided under Regulation 28 of the 1995 Regulations, the respondent was not eligible for pension under the Pension Regulations, 1995, of the appellant Bank.? 15. The above judgment was subsequently followed in Regional Manager, Punjab National Bank and another vs. Dharam Pal Singh and Punjab National Bank and others vs. Ram Kishan (supra).16. The judgment on which much reliance has been placed by the learned counsel for the respondent is Bank of India and another vs. K. Mohandas and others (supra). The issue arose for consideration in the above case has been noticed in paragraph 24 of the judgment, which is to the following effect: ?24. The principal question that falls for our determination is: whether the employees (having completed 20 years of service) of these banks (Bank of India, Punjab National Bank, Punjab & Sind Bank, Union Bank of India and United Bank of India) who had opted for voluntary retirement under VRS 2000 are entitled to addition of five years of notional service in calculating the length of service for the purpose of the said Scheme as per Regulation 29(5) of Pension Regulations, 1995??17. In the above case, the Scheme was noted as VRS 2000. Under the aforesaid Scheme eligibility was to employee who had rendered minimum of 15 years of service or completed 40 years of age. In the above case, the judgment of this Court in Bank of Baroda and others vs. Ganpat Singh Deora (supra) was relied by the Bank, which judgment was noticed and this Court laid down following in paragraphs 61 and 63: ?61. The observations made by this Court in Bank of Baroda (2009 (3) SCC 217 ) which have been quoted above and relied upon by the banks in support of their contention have to be understood in the factual backdrop namely, that the employee had completed only 13 years of service and, was not eligible for the pension under the Pension Regulations, 1995 and for the benefit of addition of five years to qualifying service under Regulation 29(5), an employee must have completed 20 years of service. The question therein was not identical in form with the question here to be decided. 63. The decision of this Court in Bank of Baroda is, thus, clearly distinguishable as the employee therein had not completed qualifying service much less 20 years of service for being eligible to the weightage under Regulation 29(5) and cannot be applied to the present controversy nor does that matter decide the question here to be decided in the present group of matters.? 18. The judgment of Bank of Baroda and others vs. Ganpat Singh Deora (supra) was not departed with but distinguished on the facts. The judgment in Bank of India and another vs. K. Mohandas and others (supra) is clearly distinguishable and is not attracted.19. Dr. Singhvi has placed much reliance on the judgment of this Court in National Insurance Company Limited and another vs. Kirpal Singh, (2014) 5 SCC 189. In the above case, this Court had occasion to consider the SVRS Scheme, 2004. Under the General Insurance Business (Nationalisation) Act, 1972, the eligibility of the Scheme was confined to those employees who have attained the age of 40 years and completed 10 years of qualifying service as on the date of notification. Clause 6 of Scheme, 2004 subclause 1(c) provided that pension shall be payable as per the General Insurance (Employees?) Pension Scheme, 1995. The Scheme, which was considered in the above case in Bank of Baroda(supra), is pari materia to the Scheme of the Central Bank of India, 2001. We feel ourselves bound by judgment of this Court in Bank of Baroda vs. Ganpat Singh Deora (supra), which judgment is directly on the similar Regulations and the Scheme. There being two Judge Bench judgment on the similar Regulations and Scheme, we are not inclined to accede to the request of the learned counsel for the respondent that the matter needs to be referred to a larger Bench to consider the Bank of Baroda vs. Ganpat Singh Deora and National Insurance vs. Kirpal Singh. The judgment of two Judge Bench in National Insurance vs. Kirpal Singh (supra) being on different Regulations and Scheme, we rest our judgment following two Judge Bench judgment of this Court in Bank of Baroda vs Ganpat Singh Deora (supra). 20. In view of what we have said above, we are of the view that the High Court has not correctly interpreted the Scheme and the Regulations. On the submission of the learned counsel for the respondent in the facts of the present case that this Court may not interfere with the impugned judgment since the respondent is waiting for the last 18 years to receive pension, we are of the view that when the Court has to examine interpretation of a statutory Regulation, Scheme and the benefits to be extended to the employees, statutory regime in the Scheme has to be adhered to and with regard to the case of one individual, no exception can be made. We, thus, do not accept the above submission of the learned counsel for the respondent
### Response:
1
### Explanation:
9. It is true that as per Clause 4 any employee who has 15 years of service or completed 40 years of age is eligible to apply for voluntary retirement under the Scheme. There is no dispute that the respondent was eligible to apply for voluntary retirement, otherbenefits under the Scheme have been extended to the respondent and only limited issue in the present appeal is entitlement of the respondent for pension. Clause 6(ii), which is relevant provision regarding entitlement of the claim provides that ?Pension (including commuted value of pension) as per Central Bank of India (Employees?) Pension Regulations, 1995……? Thus, payment of pension under the Scheme has to be as per Pension Regulations, 1995.Voluntary retirement in the case of respondent is not retirement which is covered within the definition of Clause 2(y) on strict interpretation of definition clause. Furthermore, as clear from the opening words, the said qualifying service is ?subject to the other conditions contained in Regulations?. Chapter V of the Regulations, 1995 deals with classes of pension. Different classes of pension include superannuation pension, pension on voluntary retirement, invalid pension, compassionate allowance, premature retirement pension and compulsory retirement pension. Classes of pension specifically defined in Chapter V and in a sense retirement under Voluntary Retirement Scheme was not contemplated when the Regulations were made in 1995. Regulation 28 was amended in the year 2002 w.e.f. 01.09.2000 whereby an employee who opts for retirement before superannuation, but after rendering service for a minimum period of 15 years was also entitled for pension. The respondent is not covered by proviso to Regulation 28. As noted above, as per Clause 6(ii) of the Scheme 2001 entitlement being on the basis of Pension Regulations, 1995, the respondent shall be entitled only for pension if he falls in any of the classes of pension in Chapter V. We may notice that proviso to Regulation 28 although was amended w.e.f. 01.09.2000 but it was clarified by Circular dated 31.01.2001 that the employees, who opted for pension but completed minimum 15 years of service and opt for voluntary retirement under this Scheme would also be eligible for pro-rata pension.The judgment of Bank of Baroda and others vs. Ganpat Singh Deora (supra) was not departed with but distinguished on the facts. The judgment in Bank of India and another vs. K. Mohandas and others (supra) is clearly distinguishable and is notScheme, which was considered in the above case in Bank of Baroda(supra), is pari materia to the Scheme of the Central Bank of India, 2001. We feel ourselves bound by judgment of this Court in Bank of Baroda vs. Ganpat Singh Deora (supra), which judgment is directly on the similar Regulations and the Scheme. There being two Judge Bench judgment on the similar Regulations and Scheme, we are not inclined to accede to the request of the learned counsel for the respondent that the matter needs to be referred to a larger Bench to consider the Bank of Baroda vs. Ganpat Singh Deora and National Insurance vs. Kirpal Singh. The judgment of two Judge Bench in National Insurance vs. Kirpal Singh (supra) being on different Regulations and Scheme, we rest our judgment following two Judge Bench judgment of this Court in Bank of Baroda vs Ganpat Singh Deora (supra). 20. In view of what we have said above, we are of the view that the High Court has not correctly interpreted the Scheme and the Regulations. On the submission of the learned counsel for the respondent in the facts of the present case that this Court may not interfere with the impugned judgment since the respondent is waiting for the last 18 years to receive pension, we are of the view that when the Court has to examine interpretation of a statutory Regulation, Scheme and the benefits to be extended to the employees, statutory regime in the Scheme has to be adhered to and with regard to the case of one individual, no exception can be made. We, thus, do not accept the above submission of the learned counsel for the respondent
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New India Assurance Co. Ltd Vs. Shanti Bai
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the vehicle is Rs. 2, 50, 000/ -- in the Schedule of Premium, there in an additional payment of Rs. 600/- in respect of 50 passengers. The claim against this amount states: "for L L to passengers as per Ednt. No. I.M.T. 12". The -appellant-company has contended that it has charged premium at the rate of Rs. 12/ per passenger in respect of 50 passengers to cover its limited liability under Section 50 of the Motor Vehicles Act, 1939 which was then in force. 7. Section 95 forms part of Chapter VIII of the Motor Vehicles Act, 1939 which deals with insurance of motor vehicles against third party risks. Under Section 95, in order to comply with the requirements of this Chapter, a policy of insurance must be a policy which, inter alia, insures the person or classes of persons specified in the policy to the extent specified in sub-section (2). Under Section 95 (1)(b)(ii), the insurance policy must cover the death or bodily injury to any passenger of a public service vehicle, caused by or arising out of the use of the vehicle in a public place . Sub-section (2)(b) provides as follows:- "Section 95(1): x x x xx(2) Subject to the proviso to sub-section (1), a policy of insurance shall cover any liability incurred in respect of any o ne accident tip to the following limits, namely - (a) x x x x (b) Where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment.(i) in respect of persons other than passengers carried for hire or reward, a limit of fifty thousand rupees in all; (ii) in respect of passengers, a limit of fifteen thousand rupees for each individual passenger;" * There were the provisions at the relevant time, These provisions were interpreted by this Court in the case of National Insurance Co.Ltd. , New Delhi v. Jugal Kishore &Ors. 1988 (1) SCC 626 ). This Court observed that even though it is not permissible to use a vehicle unless it is covered at least under an act only policy, it is not obligatory for the owner of a vehicle to get it comprehensively insured. In case, however, it is got comprehensively insured, a higher premium is payable de- pending on the estimated value of the vehicle. Such insurance entitles the owner to claim reimbursement of the entire amount of loss or damage suffered up to the estimated value of the vehicle calculated according to the rules and regulations framed in this behalf It has further observed as under:-"Comprehensive insurance of the vehicle and payment of higher premium on this score, however, does not mean that the limit of the liability with regard to third party risk becomes unlimited or higher than the statutory liability fixed under subsection (2) of Section 95 of the Act. For this purpose a specific agreement has to be arrived at between the owner and the insurance company and separate premium has to be paid on the amount of liability undertaken by the insurance company in this behalfIn the present case, therefore, a comprehensive policy which has been issued on the basis of the estimate d value of the vehicle of Rs. 2, 50, 000/- does not automatically result in covering the liability with regard to third party risk for an amount higher than the statutory limit. 8. It was contended before the High Court that a separate premium has been paid for the passengers. This shows that there was a special contract to cover unlimited liability in respect of passengers between the appellant-company and re- spondent No. 4. The Tribunal as well as the High Court seem to have proceeded on the basis that the appellant-company had charged an extra premium of 0.50 paiseper passenger to cover the risk of unlimited liability towards passengers.This seems to be an error. The premium of Rs. 600/- has been paid in respect of 50 passengers . The policy clearly shows this. It is not 0.50 paise per passenger. It is pointed out by the appellant-company with reference to its tariff in respect of "Legal Liability for Accidents to Passengers" that if the limit of liability for any one passenger is fifteen thousand rupees, the rate -of annual premium per passenger is Rs. 12/-. If the limit is twenty thousand rupees, the rate of premium per passengers is Rs. 23/per annum and so on. In respect of unlimited liability, the premium payable per passenger is Rs. 50/-.9.In the present case, the premium which has been paid is at the rate of Rs. 12/- per passenger and is clearly referable to the statutory liability of fifteen thousand rupees per passenger under Section 95 (2)(b)(ii) of the Motor Vehicles Act, 1939. In the present case, there is no special con- tract between the appellant-company and respondent No. 4 to cover unlimited liability in respect of an accident to a passenger. In the absence of such an express agreement, the policy covers only the statutory liability. The mere fact that the insurance policy is a comprehensive policy will not help the respondents in any manner. As pointed. out by this Court in the case of National Insurance Co. Ltd. v. Jugal Kishore &Ors., (supra) comprehensive policy only entitles the owner to claim reimbursement of the entire amount of loss or damage suffered up to the estimated value of the vehicle. It does not mean that the limit of liability with re gard to third party risk becomes unlimited or higher than the statutory liability. For this purpose, a specific agreement is necessary which is absent in the present case. Reference in this connection may also be made to the case of M.K. Kunhimoha mmed v. P.A. Ahmedkutty &Ors., 1987 (3) SCR 1149 ). The appellant-company is, therefore, entitled to succeed to the extent that it has been directed to pay to respondents 1 to 3 any amount in excess of Rs. 15, 000/-.
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1[ds]There were the provisions at the relevant time, These provisions were interpreted by this Court in the case of National Insurance Co.Ltd. , New Delhi v. Jugal Kishore &Ors. 1988 (1) SCC 626 ). This Court observed that even though it is not permissible to use a vehicle unless it is covered at least under an act only policy, it is not obligatory for the owner of a vehicle to get it comprehensively insured. In case, however, it is got comprehensively insured, a higher premium is payable de- pending on the estimated value of the vehicle. Such insurance entitles the owner to claim reimbursement of the entire amount of loss or damage suffered up to the estimated value of the vehicle calculated according to the rules and regulations framed in this behalf It has further observed as under:-"Comprehensive insurance of the vehicle and payment of higher premium on this score, however, does not mean that the limit of the liability with regard to third party risk becomes unlimited or higher than the statutory liability fixed under subsection (2) of Section 95 of the Act. For this purpose a specific agreement has to be arrived at between the owner and the insurance company and separate premium has to be paid on the amount of liability undertaken by the insurance company in this behalfIn the present case, therefore, a comprehensive policy which has been issued on the basis of the estimate d value of the vehicle of Rs. 2, 50, 000/- does not automatically result in covering the liability with regard to third party risk for an amount higher than the statutoryshows that there was a special contract to cover unlimited liability in respect of passengers between the appellant-company and re- spondent No. 4. The Tribunal as well as the High Court seem to have proceeded on the basis that the appellant-company had charged an extra premium of 0.50 paiseper passenger to cover the risk of unlimited liability towards passengers.This seems to be an error. The premium of Rs. 600/- has been paid in respect of 50 passengers . The policy clearly shows this. It is not 0.50 paise per passenger. It is pointed out by the appellant-company with reference to its tariff in respect of "Legal Liability for Accidents to Passengers" that if the limit of liability for any one passenger is fifteen thousand rupees, the rate -of annual premium per passenger is Rs. 12/-. If the limit is twenty thousand rupees, the rate of premium per passengers is Rs. 23/per annum and so on. In respect of unlimited liability, the premium payable per passenger is Rs. 50/-.9.In the present case, the premium which has been paid is at the rate of Rs. 12/- per passenger and is clearly referable to the statutory liability of fifteen thousand rupees per passenger under Section 95 (2)(b)(ii) of the Motor Vehicles Act, 1939. In the present case, there is no special con- tract between the appellant-company and respondent No. 4 to cover unlimited liability in respect of an accident to a passenger. In the absence of such an express agreement, the policy covers only the statutory liability. The mere fact that the insurance policy is a comprehensive policy will not help the respondents in any manner. As pointed. out by this Court in the case of National Insurance Co. Ltd. v. Jugal Kishore &Ors., (supra) comprehensive policy only entitles the owner to claim reimbursement of the entire amount of loss or damage suffered up to the estimated value of the vehicle. It does not mean that the limit of liability with re gard to third party risk becomes unlimited or higher than the statutory liability. For this purpose, a specific agreement is necessary which is absent in the present case. Reference in this connection may also be made to the case of M.K. Kunhimoha mmed v. P.A. Ahmedkutty &Ors., 1987 (3) SCR 1149 ). The appellant-company is, therefore, entitled to succeed to the extent that it has been directed to pay to respondents 1 to 3 any amount in excess of Rs. 15, 000/-.
| 1 | 1,656 | 766 |
### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
the vehicle is Rs. 2, 50, 000/ -- in the Schedule of Premium, there in an additional payment of Rs. 600/- in respect of 50 passengers. The claim against this amount states: "for L L to passengers as per Ednt. No. I.M.T. 12". The -appellant-company has contended that it has charged premium at the rate of Rs. 12/ per passenger in respect of 50 passengers to cover its limited liability under Section 50 of the Motor Vehicles Act, 1939 which was then in force. 7. Section 95 forms part of Chapter VIII of the Motor Vehicles Act, 1939 which deals with insurance of motor vehicles against third party risks. Under Section 95, in order to comply with the requirements of this Chapter, a policy of insurance must be a policy which, inter alia, insures the person or classes of persons specified in the policy to the extent specified in sub-section (2). Under Section 95 (1)(b)(ii), the insurance policy must cover the death or bodily injury to any passenger of a public service vehicle, caused by or arising out of the use of the vehicle in a public place . Sub-section (2)(b) provides as follows:- "Section 95(1): x x x xx(2) Subject to the proviso to sub-section (1), a policy of insurance shall cover any liability incurred in respect of any o ne accident tip to the following limits, namely - (a) x x x x (b) Where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment.(i) in respect of persons other than passengers carried for hire or reward, a limit of fifty thousand rupees in all; (ii) in respect of passengers, a limit of fifteen thousand rupees for each individual passenger;" * There were the provisions at the relevant time, These provisions were interpreted by this Court in the case of National Insurance Co.Ltd. , New Delhi v. Jugal Kishore &Ors. 1988 (1) SCC 626 ). This Court observed that even though it is not permissible to use a vehicle unless it is covered at least under an act only policy, it is not obligatory for the owner of a vehicle to get it comprehensively insured. In case, however, it is got comprehensively insured, a higher premium is payable de- pending on the estimated value of the vehicle. Such insurance entitles the owner to claim reimbursement of the entire amount of loss or damage suffered up to the estimated value of the vehicle calculated according to the rules and regulations framed in this behalf It has further observed as under:-"Comprehensive insurance of the vehicle and payment of higher premium on this score, however, does not mean that the limit of the liability with regard to third party risk becomes unlimited or higher than the statutory liability fixed under subsection (2) of Section 95 of the Act. For this purpose a specific agreement has to be arrived at between the owner and the insurance company and separate premium has to be paid on the amount of liability undertaken by the insurance company in this behalfIn the present case, therefore, a comprehensive policy which has been issued on the basis of the estimate d value of the vehicle of Rs. 2, 50, 000/- does not automatically result in covering the liability with regard to third party risk for an amount higher than the statutory limit. 8. It was contended before the High Court that a separate premium has been paid for the passengers. This shows that there was a special contract to cover unlimited liability in respect of passengers between the appellant-company and re- spondent No. 4. The Tribunal as well as the High Court seem to have proceeded on the basis that the appellant-company had charged an extra premium of 0.50 paiseper passenger to cover the risk of unlimited liability towards passengers.This seems to be an error. The premium of Rs. 600/- has been paid in respect of 50 passengers . The policy clearly shows this. It is not 0.50 paise per passenger. It is pointed out by the appellant-company with reference to its tariff in respect of "Legal Liability for Accidents to Passengers" that if the limit of liability for any one passenger is fifteen thousand rupees, the rate -of annual premium per passenger is Rs. 12/-. If the limit is twenty thousand rupees, the rate of premium per passengers is Rs. 23/per annum and so on. In respect of unlimited liability, the premium payable per passenger is Rs. 50/-.9.In the present case, the premium which has been paid is at the rate of Rs. 12/- per passenger and is clearly referable to the statutory liability of fifteen thousand rupees per passenger under Section 95 (2)(b)(ii) of the Motor Vehicles Act, 1939. In the present case, there is no special con- tract between the appellant-company and respondent No. 4 to cover unlimited liability in respect of an accident to a passenger. In the absence of such an express agreement, the policy covers only the statutory liability. The mere fact that the insurance policy is a comprehensive policy will not help the respondents in any manner. As pointed. out by this Court in the case of National Insurance Co. Ltd. v. Jugal Kishore &Ors., (supra) comprehensive policy only entitles the owner to claim reimbursement of the entire amount of loss or damage suffered up to the estimated value of the vehicle. It does not mean that the limit of liability with re gard to third party risk becomes unlimited or higher than the statutory liability. For this purpose, a specific agreement is necessary which is absent in the present case. Reference in this connection may also be made to the case of M.K. Kunhimoha mmed v. P.A. Ahmedkutty &Ors., 1987 (3) SCR 1149 ). The appellant-company is, therefore, entitled to succeed to the extent that it has been directed to pay to respondents 1 to 3 any amount in excess of Rs. 15, 000/-.
### Response:
1
### Explanation:
There were the provisions at the relevant time, These provisions were interpreted by this Court in the case of National Insurance Co.Ltd. , New Delhi v. Jugal Kishore &Ors. 1988 (1) SCC 626 ). This Court observed that even though it is not permissible to use a vehicle unless it is covered at least under an act only policy, it is not obligatory for the owner of a vehicle to get it comprehensively insured. In case, however, it is got comprehensively insured, a higher premium is payable de- pending on the estimated value of the vehicle. Such insurance entitles the owner to claim reimbursement of the entire amount of loss or damage suffered up to the estimated value of the vehicle calculated according to the rules and regulations framed in this behalf It has further observed as under:-"Comprehensive insurance of the vehicle and payment of higher premium on this score, however, does not mean that the limit of the liability with regard to third party risk becomes unlimited or higher than the statutory liability fixed under subsection (2) of Section 95 of the Act. For this purpose a specific agreement has to be arrived at between the owner and the insurance company and separate premium has to be paid on the amount of liability undertaken by the insurance company in this behalfIn the present case, therefore, a comprehensive policy which has been issued on the basis of the estimate d value of the vehicle of Rs. 2, 50, 000/- does not automatically result in covering the liability with regard to third party risk for an amount higher than the statutoryshows that there was a special contract to cover unlimited liability in respect of passengers between the appellant-company and re- spondent No. 4. The Tribunal as well as the High Court seem to have proceeded on the basis that the appellant-company had charged an extra premium of 0.50 paiseper passenger to cover the risk of unlimited liability towards passengers.This seems to be an error. The premium of Rs. 600/- has been paid in respect of 50 passengers . The policy clearly shows this. It is not 0.50 paise per passenger. It is pointed out by the appellant-company with reference to its tariff in respect of "Legal Liability for Accidents to Passengers" that if the limit of liability for any one passenger is fifteen thousand rupees, the rate -of annual premium per passenger is Rs. 12/-. If the limit is twenty thousand rupees, the rate of premium per passengers is Rs. 23/per annum and so on. In respect of unlimited liability, the premium payable per passenger is Rs. 50/-.9.In the present case, the premium which has been paid is at the rate of Rs. 12/- per passenger and is clearly referable to the statutory liability of fifteen thousand rupees per passenger under Section 95 (2)(b)(ii) of the Motor Vehicles Act, 1939. In the present case, there is no special con- tract between the appellant-company and respondent No. 4 to cover unlimited liability in respect of an accident to a passenger. In the absence of such an express agreement, the policy covers only the statutory liability. The mere fact that the insurance policy is a comprehensive policy will not help the respondents in any manner. As pointed. out by this Court in the case of National Insurance Co. Ltd. v. Jugal Kishore &Ors., (supra) comprehensive policy only entitles the owner to claim reimbursement of the entire amount of loss or damage suffered up to the estimated value of the vehicle. It does not mean that the limit of liability with re gard to third party risk becomes unlimited or higher than the statutory liability. For this purpose, a specific agreement is necessary which is absent in the present case. Reference in this connection may also be made to the case of M.K. Kunhimoha mmed v. P.A. Ahmedkutty &Ors., 1987 (3) SCR 1149 ). The appellant-company is, therefore, entitled to succeed to the extent that it has been directed to pay to respondents 1 to 3 any amount in excess of Rs. 15, 000/-.
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Makhanlal Waza & Ors Vs. State Of Jammu & Kashmir & Ors
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originally he and the petitioners belonged. It has been stated somewhat tamely in the return of respondents 1 and 2 that when these teachers who were affected by the decision of this court had been promoted to the gazetted cadre not only seniority but merit had also been taken into consideration. But it has not been denied and this fact has been admitted before us in the course of arguments that but for the so-called communal policy these teachers would not have been promoted to the gazetted cadre even though merit and other factors had entered into their promotion inter se. As regards the other respondent teachers who did not figure in the earlier petition, they were all promoted to the gazetted cadre prior and subsequent to the previous decision in complete defiance of the law laid down by this Court. Such a course has been sought to be justified on the tenuous ground that they were not parties to the previous petition and therefore their cases would not be governed by the decision given in that petition. It may be observed immediately that such a position is wholly untenable and misconceived. The Judgment which was delivered did not merely declare the promotions granted to the respondents in the writ petition filed at the previous stage as unconstitutional but also laid down in clear and unequivocal terms that the distribution of appointments, posts or promotions made in implementation of the communal policy was contrary to the constitutional guarantee of Article 16. The law so declared by this court was binding on the respondent State and its officers and they were bound to follow it whether a majority of the present respondents were parties or not to the previous petition.6. In para 20 of the petition instances have been given which show that in spite of the judgment of this court certain teachers who had been promoted to the post of Head Masters are still Head Masters though they are very much below Kashmiri Pandit teachers in the list of seniority. For instance, Mohd. Yusuf Masoodi who was respondent No. 52 in the previous writ petition had been promoted to the post of Head Master, Nowhatta. Even after the judgment he was continuing as Head Master although he was placed at No. 243 in the seniority list of 1961. Messrs. Deva Kaul and Dwarwa Nath who were 68 and 76 respectively in that seniority list were working as teachers under him in the same school. Masoodi was drawing a salary above Rs. 350/- per month whereas the two Kashmiri Pandit teachers were drawing only Rs. 300/though both of them were senior to him and were not in the same grade of Rs. 150-500 to which Masoodi is stated to have been reverted. Similarly those teachers who were given promotions after the appointments on communal basis had been struck down had been promoted following the same rule. In para 22 an instance is given of Ghulam Mohiuddin Wani who had been promoted as Teacher-in-Charge High School Shogapore. It is stated that his name did not appear in the seniority list whereas Triloki Nath Kaul was much senior to him but was working as a teacher under him although the salary which Kaul was getting was Rs. 250/- per month and the salary which Wani was drawing was only Rs. 210/- per month. In the return respondents I and 2 have not contradicted the facts stated in para 20 of the petition but have taken certain pleas of general nature and of legal character. Similarly with regard to para 22 it has been stated inter alia in the return."As regards the individual cases referred to in para 22 of the writ petition the averments and submissions made therein are misconceived and unwarranted and misleading"Our attention has, however, not been invited to any facts or particulars relating to the aforesaid instances in the return which would throw doubt on the correctness of the instances given in the petition in paras 20 and 22.7. According to the petitioners the present respondents 3 to 27 were not parties to the previous proceedings but they were promoted to the gazetted grade in an officiating capacity though they were junior to petitioner No. 1. Respondents 38 to 107 were parties to the previous petition and their promotions were expressly quashed by this court. Respondents 108 to 218 were promoted during the pendency of the writ petition and respondents 219 to 251 were promoted after the decision of this court in an officiating capacity. It is abundantly clear and this position has not been controverted that all the promotions which were made of the respondents who were not parties to the previous petition were based not purely on merit but were made on account of the communal policy which had been struck down by this court as unconstitutional. Respondents 38 to 107 who were parties to the previous petition were reverted to the non-gazetted grade but they were still retained in the posts which they were holding when they had been promoted to the gazetted grade although in some cases the nomenclature was changed from Head Master to Teacher-in-Charge. In the absence of any rules lawfully promulgated for employment of backward classes promotions could be made only in accordance with rule 25 and there can be no manner of doubt that there was absolute non-compliance with the provisions of that rule. The promotions thus made of all the respondent-teachers were illegal and unconstitutional being violative of Article 16 of the Constitution. They have, therefore, to be set aside. All the promotions made to the higher posts or the higher grade pursuant to the communal policy would have to be revised and reconsidered and appropriate orders must be passed by respondents 1 and 2 with regard to them as also the petitioners in accordance with law. The new rules stated to have been framed have not been shown to us and we wish to express no opinion on their applicability.
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1[ds]It is abundantly clear and this position has not been controverted that all the promotions which were made of the respondents who were not parties to the previous petition were based not purely on merit but were made on account of the communal policy which had been struck down by this court as unconstitutional. Respondents 38 to 107 who were parties to the previous petition were reverted to the non-gazetted grade but they were still retained in the posts which they were holding when they had been promoted to the gazetted grade although in some cases the nomenclature was changed from Head Master to Teacher-in-Charge. In the absence of any rules lawfully promulgated for employment of backward classes promotions could be made only in accordance with rule 25 and there can be no manner of doubt that there was absolute non-compliance with the provisions of that rule. The promotions thus made of all the respondent-teachers were illegal and unconstitutional being violative of Article 16 of the Constitution. They have, therefore, to be set aside. All the promotions made to the higher posts or the higher grade pursuant to the communal policy would have to be revised and reconsidered and appropriate orders must be passed by respondents 1 and 2 with regard to them as also the petitioners in accordance with law. The new rules stated to have been framed have not been shown to us and we wish to express no opinion on their applicability.
| 1 | 2,865 | 258 |
### 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:
originally he and the petitioners belonged. It has been stated somewhat tamely in the return of respondents 1 and 2 that when these teachers who were affected by the decision of this court had been promoted to the gazetted cadre not only seniority but merit had also been taken into consideration. But it has not been denied and this fact has been admitted before us in the course of arguments that but for the so-called communal policy these teachers would not have been promoted to the gazetted cadre even though merit and other factors had entered into their promotion inter se. As regards the other respondent teachers who did not figure in the earlier petition, they were all promoted to the gazetted cadre prior and subsequent to the previous decision in complete defiance of the law laid down by this Court. Such a course has been sought to be justified on the tenuous ground that they were not parties to the previous petition and therefore their cases would not be governed by the decision given in that petition. It may be observed immediately that such a position is wholly untenable and misconceived. The Judgment which was delivered did not merely declare the promotions granted to the respondents in the writ petition filed at the previous stage as unconstitutional but also laid down in clear and unequivocal terms that the distribution of appointments, posts or promotions made in implementation of the communal policy was contrary to the constitutional guarantee of Article 16. The law so declared by this court was binding on the respondent State and its officers and they were bound to follow it whether a majority of the present respondents were parties or not to the previous petition.6. In para 20 of the petition instances have been given which show that in spite of the judgment of this court certain teachers who had been promoted to the post of Head Masters are still Head Masters though they are very much below Kashmiri Pandit teachers in the list of seniority. For instance, Mohd. Yusuf Masoodi who was respondent No. 52 in the previous writ petition had been promoted to the post of Head Master, Nowhatta. Even after the judgment he was continuing as Head Master although he was placed at No. 243 in the seniority list of 1961. Messrs. Deva Kaul and Dwarwa Nath who were 68 and 76 respectively in that seniority list were working as teachers under him in the same school. Masoodi was drawing a salary above Rs. 350/- per month whereas the two Kashmiri Pandit teachers were drawing only Rs. 300/though both of them were senior to him and were not in the same grade of Rs. 150-500 to which Masoodi is stated to have been reverted. Similarly those teachers who were given promotions after the appointments on communal basis had been struck down had been promoted following the same rule. In para 22 an instance is given of Ghulam Mohiuddin Wani who had been promoted as Teacher-in-Charge High School Shogapore. It is stated that his name did not appear in the seniority list whereas Triloki Nath Kaul was much senior to him but was working as a teacher under him although the salary which Kaul was getting was Rs. 250/- per month and the salary which Wani was drawing was only Rs. 210/- per month. In the return respondents I and 2 have not contradicted the facts stated in para 20 of the petition but have taken certain pleas of general nature and of legal character. Similarly with regard to para 22 it has been stated inter alia in the return."As regards the individual cases referred to in para 22 of the writ petition the averments and submissions made therein are misconceived and unwarranted and misleading"Our attention has, however, not been invited to any facts or particulars relating to the aforesaid instances in the return which would throw doubt on the correctness of the instances given in the petition in paras 20 and 22.7. According to the petitioners the present respondents 3 to 27 were not parties to the previous proceedings but they were promoted to the gazetted grade in an officiating capacity though they were junior to petitioner No. 1. Respondents 38 to 107 were parties to the previous petition and their promotions were expressly quashed by this court. Respondents 108 to 218 were promoted during the pendency of the writ petition and respondents 219 to 251 were promoted after the decision of this court in an officiating capacity. It is abundantly clear and this position has not been controverted that all the promotions which were made of the respondents who were not parties to the previous petition were based not purely on merit but were made on account of the communal policy which had been struck down by this court as unconstitutional. Respondents 38 to 107 who were parties to the previous petition were reverted to the non-gazetted grade but they were still retained in the posts which they were holding when they had been promoted to the gazetted grade although in some cases the nomenclature was changed from Head Master to Teacher-in-Charge. In the absence of any rules lawfully promulgated for employment of backward classes promotions could be made only in accordance with rule 25 and there can be no manner of doubt that there was absolute non-compliance with the provisions of that rule. The promotions thus made of all the respondent-teachers were illegal and unconstitutional being violative of Article 16 of the Constitution. They have, therefore, to be set aside. All the promotions made to the higher posts or the higher grade pursuant to the communal policy would have to be revised and reconsidered and appropriate orders must be passed by respondents 1 and 2 with regard to them as also the petitioners in accordance with law. The new rules stated to have been framed have not been shown to us and we wish to express no opinion on their applicability.
### Response:
1
### Explanation:
It is abundantly clear and this position has not been controverted that all the promotions which were made of the respondents who were not parties to the previous petition were based not purely on merit but were made on account of the communal policy which had been struck down by this court as unconstitutional. Respondents 38 to 107 who were parties to the previous petition were reverted to the non-gazetted grade but they were still retained in the posts which they were holding when they had been promoted to the gazetted grade although in some cases the nomenclature was changed from Head Master to Teacher-in-Charge. In the absence of any rules lawfully promulgated for employment of backward classes promotions could be made only in accordance with rule 25 and there can be no manner of doubt that there was absolute non-compliance with the provisions of that rule. The promotions thus made of all the respondent-teachers were illegal and unconstitutional being violative of Article 16 of the Constitution. They have, therefore, to be set aside. All the promotions made to the higher posts or the higher grade pursuant to the communal policy would have to be revised and reconsidered and appropriate orders must be passed by respondents 1 and 2 with regard to them as also the petitioners in accordance with law. The new rules stated to have been framed have not been shown to us and we wish to express no opinion on their applicability.
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JAGDISH CHANDER Vs. SATISH CHANDER
|
recorded C.A.@ SLP(C)No.36299/2016 by the trial Court, as confirmed by the First Appellate Court. Further, it is contended that the High Court while relying on the document (Ext. PW-3/F) held that gift deed was executed by receiving consideration amount of Rs.5,000/-. It is submitted that the original document is in vernacular language. The figure ‘5,000? as mentioned, on the first page of the document, is only for the purpose of valuation, for payment of stamp duty, but same is erroneously considered as consideration by the High Court. It is further submitted that as the gift deed was not under challenge, it was not open for the High Court to overturn the findings recorded by the Trial Court and the First Appellate Court, for granting relief of declaration as prayed for. 12. On the other hand, it is contended by learned counsel appearing for the respondents that there was absolutely no reason for executing the gift deed by Smt. Vidya Devi, on 09.04.1991, within a short span of time, after executing the Will. It is contended that as much as the gift deed is executed within few days after the execution of Will, that itself creates an amount of doubt on the genuineness of gift deed. It is submitted that such gift deed was got executed without her C.A.@ SLP(C)No.36299/2016 knowledge and consent. It is also submitted that as the gift deed is evidenced by receipt of consideration, and further in view of the documentary evidence relating to mutation (Ext.PW-3/F), there are no grounds to interfere with the judgment of the High Court. 13. Having heard the learned counsels on both the sides, we have perused the impugned judgment of the the High Court and other material placed on record. At the outset, it is to be noted that the gift deed which is executed in favour of the appellant herein, is a registered gift deed. It is also clear from the evidence on record that Smt. Vidya Devi has acquired title to the property by way of Will. Same is evident from the Ext.D-4, a judgment in Civil Suit No.163 of 1987, decided on 22.08.1989. In the said suit, it is clearly held that Smt. Vidya Devi has acquired title to the property by way of Will, as such, the property is to be considered as a self-acquired property of Smt. Vidya Devi. 14. As there is a serious dispute with regard to receipt of consideration of Five Thousand Rupees for executing the gift deed, we have carefully perused the copy of the gift deed which is placed on record. A C.A.@ SLP(C)No.36299/2016 perusal of the gift deed makes it clear that what is mentioned on the first page of the document, is the valuation of the property for the purpose of stamp duty and registration charges which is arrived at Rs.5,000/-, but not the consideration received by the donor for executing the gift deed. The gift deed is correctly interpreted by the Trial Court and the First Appellate Court. But by misconstruing the same, the High Court has held that gift was evidenced by a consideration amount of Rs.5,000/-. It is true that if the gift is evidenced by consideration,same cannot be valid one within the meaning of Section 122 of the T.P. Act. But it is clear from the document itself that no consideration is passed on as per the registered gift deed. Mentioning of Rs.5,000/- in the first page, for the purpose of valuation, cannot be said to be a consideration received by the donor for executing the gift deed. 15. With reference to the order of mutation Ext.PW3/F, the High Court held that the order of mutation embodied in Ext.PW3/F conveys the alienation under Ext.DW2/A and that the same being a coloured transaction or a sham transaction. In Ext.PW3/F-mutation, it is stated that C.A.@ SLP(C)No.36299/2016 ?Gift Deed registered valuating Rs.5,000/-.? The order of mutation reads as under:-?Mutation of the Gift Deed executed by Smt.Vidya Devi to Jagdish Chander as identified by Tilak Raj, Advocate at Nurpur which has the value of Rs.5,000/-. Registry put up for transfer of ownership and possession valuing Rs.5,000/-. Therefore, mutation of the registry bearing No.162 dated 23.04.1991 regarding land Khasra No.235/710, New Khasra No.2132, 2133, area 0-02-85 hectare out of 0-06-1 hectare is sanctioned.?By perusal of the above order of mutation, it is seen that the order of mutation also only refers to the valuation of the property as Rs.5000/-. There is nothing to indicate that the said amount of Rs.5,000/- has been paid as consideration to the donor. Both the Gift Deed Ext.DW2/A as well as the order of the mutation only indicate the valuation of the property as Rs.5,000/- only for the purpose of stamp duty or registration charges and for payment of fees for mutation respectively. The High Court erred in saying that Ext.DW2/A when read with Ext.PW3/F candidly convey qua the alienation of the suit land under Ext.DW2/A and the donor receiving consideration from the donee. C.A.@ SLP(C)No.36299/2016 16. Though, it is the contention of the respondent that such gift deed was not executed by Smt.Vidya Devi on her free will and consent, there is no evidence on record placed to substantiate such allegation. Further, in absence of challenge to the gift deed, it is not open to record any findings on the validity of the gift. The High Court also committed error in relying on the mutation proceeding, which itself is based on the registered gift deed. Further, the High Court fell in error in re-appreciating the evidence on record to come to a different conclusion than the findings recorded by the Trial Court, in exercise of power under Section 100 of the Code of Civil Procedure. As the findings recorded by the Trial Court and the First Appellate Court are in accordance with the evidence on record, and further the High Court has misconstrued the document of gift, we are of the view that judgment of the High Court is liable to be set aside.
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1[ds]13. Having heard the learned counsels on both the sides, we have perused the impugned judgment of the the High Court and other material placed on record. At the outset, it is to be noted that the gift deed which is executed in favour of the appellant herein, is a registered gift deed. It is also clear from the evidence on record that Smt. Vidya Devi has acquired title to the property by way of Will. Same is evident from the Ext.D-4, a judgment in Civil Suit No.163 of 1987, decided on 22.08.1989. In the said suit, it is clearly held that Smt. Vidya Devi has acquired title to the property by way of Will, as such, the property is to be considered as a self-acquired property of Smt. Vidya Devi.As there is a serious dispute with regard to receipt of consideration of Five Thousand Rupees for executing the gift deed, we have carefully perused the copy of the gift deed which is placed on record. A C.A.@ SLP(C)No.36299/2016 perusal of the gift deed makes it clear that what is mentioned on the first page of the document, is the valuation of the property for the purpose of stamp duty and registration charges which is arrived at Rs.5,000/-, but not the consideration received by the donor for executing the gift deed. The gift deed is correctly interpreted by the Trial Court and the First Appellate Court. But by misconstruing the same, the High Court has held that gift was evidenced by a consideration amount of Rs.5,000/-. It is true that if the gift is evidenced by consideration,same cannot be valid one within the meaning of Section 122 of the T.P. Act. But it is clear from the document itself that no consideration is passed on as per the registered gift deed. Mentioning of Rs.5,000/- in the first page, for the purpose of valuation, cannot be said to be a consideration received by the donor for executing the giftperusal of the above order of mutation, it is seen that the order of mutation also only refers to the valuation of the property as Rs.5000/-. There is nothing to indicate that the said amount of Rs.5,000/- has been paid as consideration to the donor. Both the Gift Deed Ext.DW2/A as well as the order of the mutation only indicate the valuation of the property as Rs.5,000/- only for the purpose of stamp duty or registration charges and for payment of fees for mutation respectively. The High Court erred in saying that Ext.DW2/A when read with Ext.PW3/F candidly convey qua the alienation of the suit land under Ext.DW2/A and the donor receiving consideration from the donee. C.A.@ SLP(C)No.Though, it is the contention of the respondent that such gift deed was not executed by Smt.Vidya Devi on her free will and consent, there is no evidence on record placed to substantiate such allegation. Further, in absence of challenge to the gift deed, it is not open to record any findings on the validity of the gift. The High Court also committed error in relying on the mutation proceeding, which itself is based on the registered gift deed. Further, the High Court fell in error in re-appreciating the evidence on record to come to a different conclusion than the findings recorded by the Trial Court, in exercise of power under Section 100 of the Code of Civil Procedure. As the findings recorded by the Trial Court and the First Appellate Court are in accordance with the evidence on record, and further the High Court has misconstrued the document of gift, we are of the view that judgment of the High Court is liable to be set aside.
| 1 | 2,224 | 680 |
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recorded C.A.@ SLP(C)No.36299/2016 by the trial Court, as confirmed by the First Appellate Court. Further, it is contended that the High Court while relying on the document (Ext. PW-3/F) held that gift deed was executed by receiving consideration amount of Rs.5,000/-. It is submitted that the original document is in vernacular language. The figure ‘5,000? as mentioned, on the first page of the document, is only for the purpose of valuation, for payment of stamp duty, but same is erroneously considered as consideration by the High Court. It is further submitted that as the gift deed was not under challenge, it was not open for the High Court to overturn the findings recorded by the Trial Court and the First Appellate Court, for granting relief of declaration as prayed for. 12. On the other hand, it is contended by learned counsel appearing for the respondents that there was absolutely no reason for executing the gift deed by Smt. Vidya Devi, on 09.04.1991, within a short span of time, after executing the Will. It is contended that as much as the gift deed is executed within few days after the execution of Will, that itself creates an amount of doubt on the genuineness of gift deed. It is submitted that such gift deed was got executed without her C.A.@ SLP(C)No.36299/2016 knowledge and consent. It is also submitted that as the gift deed is evidenced by receipt of consideration, and further in view of the documentary evidence relating to mutation (Ext.PW-3/F), there are no grounds to interfere with the judgment of the High Court. 13. Having heard the learned counsels on both the sides, we have perused the impugned judgment of the the High Court and other material placed on record. At the outset, it is to be noted that the gift deed which is executed in favour of the appellant herein, is a registered gift deed. It is also clear from the evidence on record that Smt. Vidya Devi has acquired title to the property by way of Will. Same is evident from the Ext.D-4, a judgment in Civil Suit No.163 of 1987, decided on 22.08.1989. In the said suit, it is clearly held that Smt. Vidya Devi has acquired title to the property by way of Will, as such, the property is to be considered as a self-acquired property of Smt. Vidya Devi. 14. As there is a serious dispute with regard to receipt of consideration of Five Thousand Rupees for executing the gift deed, we have carefully perused the copy of the gift deed which is placed on record. A C.A.@ SLP(C)No.36299/2016 perusal of the gift deed makes it clear that what is mentioned on the first page of the document, is the valuation of the property for the purpose of stamp duty and registration charges which is arrived at Rs.5,000/-, but not the consideration received by the donor for executing the gift deed. The gift deed is correctly interpreted by the Trial Court and the First Appellate Court. But by misconstruing the same, the High Court has held that gift was evidenced by a consideration amount of Rs.5,000/-. It is true that if the gift is evidenced by consideration,same cannot be valid one within the meaning of Section 122 of the T.P. Act. But it is clear from the document itself that no consideration is passed on as per the registered gift deed. Mentioning of Rs.5,000/- in the first page, for the purpose of valuation, cannot be said to be a consideration received by the donor for executing the gift deed. 15. With reference to the order of mutation Ext.PW3/F, the High Court held that the order of mutation embodied in Ext.PW3/F conveys the alienation under Ext.DW2/A and that the same being a coloured transaction or a sham transaction. In Ext.PW3/F-mutation, it is stated that C.A.@ SLP(C)No.36299/2016 ?Gift Deed registered valuating Rs.5,000/-.? The order of mutation reads as under:-?Mutation of the Gift Deed executed by Smt.Vidya Devi to Jagdish Chander as identified by Tilak Raj, Advocate at Nurpur which has the value of Rs.5,000/-. Registry put up for transfer of ownership and possession valuing Rs.5,000/-. Therefore, mutation of the registry bearing No.162 dated 23.04.1991 regarding land Khasra No.235/710, New Khasra No.2132, 2133, area 0-02-85 hectare out of 0-06-1 hectare is sanctioned.?By perusal of the above order of mutation, it is seen that the order of mutation also only refers to the valuation of the property as Rs.5000/-. There is nothing to indicate that the said amount of Rs.5,000/- has been paid as consideration to the donor. Both the Gift Deed Ext.DW2/A as well as the order of the mutation only indicate the valuation of the property as Rs.5,000/- only for the purpose of stamp duty or registration charges and for payment of fees for mutation respectively. The High Court erred in saying that Ext.DW2/A when read with Ext.PW3/F candidly convey qua the alienation of the suit land under Ext.DW2/A and the donor receiving consideration from the donee. C.A.@ SLP(C)No.36299/2016 16. Though, it is the contention of the respondent that such gift deed was not executed by Smt.Vidya Devi on her free will and consent, there is no evidence on record placed to substantiate such allegation. Further, in absence of challenge to the gift deed, it is not open to record any findings on the validity of the gift. The High Court also committed error in relying on the mutation proceeding, which itself is based on the registered gift deed. Further, the High Court fell in error in re-appreciating the evidence on record to come to a different conclusion than the findings recorded by the Trial Court, in exercise of power under Section 100 of the Code of Civil Procedure. As the findings recorded by the Trial Court and the First Appellate Court are in accordance with the evidence on record, and further the High Court has misconstrued the document of gift, we are of the view that judgment of the High Court is liable to be set aside.
### Response:
1
### Explanation:
13. Having heard the learned counsels on both the sides, we have perused the impugned judgment of the the High Court and other material placed on record. At the outset, it is to be noted that the gift deed which is executed in favour of the appellant herein, is a registered gift deed. It is also clear from the evidence on record that Smt. Vidya Devi has acquired title to the property by way of Will. Same is evident from the Ext.D-4, a judgment in Civil Suit No.163 of 1987, decided on 22.08.1989. In the said suit, it is clearly held that Smt. Vidya Devi has acquired title to the property by way of Will, as such, the property is to be considered as a self-acquired property of Smt. Vidya Devi.As there is a serious dispute with regard to receipt of consideration of Five Thousand Rupees for executing the gift deed, we have carefully perused the copy of the gift deed which is placed on record. A C.A.@ SLP(C)No.36299/2016 perusal of the gift deed makes it clear that what is mentioned on the first page of the document, is the valuation of the property for the purpose of stamp duty and registration charges which is arrived at Rs.5,000/-, but not the consideration received by the donor for executing the gift deed. The gift deed is correctly interpreted by the Trial Court and the First Appellate Court. But by misconstruing the same, the High Court has held that gift was evidenced by a consideration amount of Rs.5,000/-. It is true that if the gift is evidenced by consideration,same cannot be valid one within the meaning of Section 122 of the T.P. Act. But it is clear from the document itself that no consideration is passed on as per the registered gift deed. Mentioning of Rs.5,000/- in the first page, for the purpose of valuation, cannot be said to be a consideration received by the donor for executing the giftperusal of the above order of mutation, it is seen that the order of mutation also only refers to the valuation of the property as Rs.5000/-. There is nothing to indicate that the said amount of Rs.5,000/- has been paid as consideration to the donor. Both the Gift Deed Ext.DW2/A as well as the order of the mutation only indicate the valuation of the property as Rs.5,000/- only for the purpose of stamp duty or registration charges and for payment of fees for mutation respectively. The High Court erred in saying that Ext.DW2/A when read with Ext.PW3/F candidly convey qua the alienation of the suit land under Ext.DW2/A and the donor receiving consideration from the donee. C.A.@ SLP(C)No.Though, it is the contention of the respondent that such gift deed was not executed by Smt.Vidya Devi on her free will and consent, there is no evidence on record placed to substantiate such allegation. Further, in absence of challenge to the gift deed, it is not open to record any findings on the validity of the gift. The High Court also committed error in relying on the mutation proceeding, which itself is based on the registered gift deed. Further, the High Court fell in error in re-appreciating the evidence on record to come to a different conclusion than the findings recorded by the Trial Court, in exercise of power under Section 100 of the Code of Civil Procedure. As the findings recorded by the Trial Court and the First Appellate Court are in accordance with the evidence on record, and further the High Court has misconstrued the document of gift, we are of the view that judgment of the High Court is liable to be set aside.
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CITY AND INDUSTRIAL DEVELOPMENT CORPORATION OF MAHARASHTRA LIMITED Vs. LAMBDA THERAPEUTIC RESEARCH LIMITED
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of 1975 which read as hereunder: Regulations- 6 Completion of building, factory, structure or other work within the prescribed time – The Lessee shall complete building, factory structure or other work for which the land has been granted within the time prescribed by the Managing Director. Regulation – 7 Permission for extension of time – If the Intending Lessee obtains development permission and commences construction accordance with the conditions of agreement to lease made between him and the Corporation but has been unable to complete the construction within the time stipulated in the agreement to lease for reasons beyond his control, the Managing Director may permit extension of time for completion of buildings, factory, structure or other work on payment of additional premium. 12. The respondent No.3 has relied on the completion certificate dated 24.12.2008 issued by the architects addressed to the respondent No.4 herein. Though the respondent No.3 has sought to rely on the same, what is required to be taken note is the communication dated 09.02.2009 addressed by the respondent No.4 to respondent No.3 indicating the requirement to be complied for grant of occupancy certificate. What is inter alia sought therein is No dues Certificate from the appellant to be submitted to respondent No.4. The same would indicate that the respondent No.3 herein though claimed to have completed the construction before 31.12.2008 had only sought for issue of No dues Certificate from the appellant herein through the communication dated 11.08.2010. Subsequently, a letter dated 31.01.2011 was issued, whereafter the reminder dated 04.05.2013 was sent by respondent No.3 to the appellant seeking for No dues Certificate. In the said reminder dated 04.05.2013 reference is made to the occupancy certificate obtained for 78 per cent of the FSI which relates to A Wing and it has been indicated therein that the balance 22 per cent was completed by 31.12.2008. It is in reply to the said letter the impugned communication dated 20.04.2016/01.07.2016 was issued. 13. In the present circumstance from what has been narrated above it is noticed that there is lacuna in the manner in which the appellant has also dealt with the matter. However, neither the High Court nor this Court while exercising the limited jurisdiction of judicial review can enter into the factual aspects to determine whether the construction in fact had been completed prior to 31.12.2018 before a decision is taken on that aspect by the appellant, based on the available records and spot verification if need be. This is more so when that aspect of the matter is disputed by the appellant herein. The respondents no doubt have relied on the completion certificate dated 24.12.2008, which as already taken note has been addressed to the respondent No.4 and the copy of the same has been furnished to the appellant while making a request for issue of the No dues Certificate. Essentially when the plot was allotted on certain conditions and the same stipulated completion of the construction in a time frame to avoid liability and when the statutory provisions required the No dues Certificate from the appellant so as to seek occupancy certificate from the respondent No.4 the primary procedure is for the respondent No.3 to submit necessary documents to the appellant to establish that the construction is put up within the time frame stipulated and to indicate that they are not liable to pay any additional lease premium. In the instant case we do not find that such procedure has been complied with. Even if the requirement was not complied and if the appellant was entitled to levy the additional lease premium the same was required to be done by adopting an appropriate procedure. Hence to that extent the observations of the High Court that the Principle of Natural Justice has not been complied by the appellant is justified. However, such lapse in procedure was not sufficient to nullify the demand in absolute terms. The High Court, in our view, shall have issued direction to the appellant Corporation to follow appropriate procedure in that regard and pass a reasoned order. 14. Further, we take note that the demand made in the impugned communication is for the period till 30.03.2007 though it is contended by the appellant that the construction has not been completed as on 31.12.2008 nor would the communication indicate as to when according to them the construction was completed. That apart though certain details were indicated with regard to the construction in the reminder letter dated 24.05.2013, in response to which the impugned communication is issued, there is no reference to the details therein. Hence, despite the manner in which the impugned communication dated 20.04.2016/01.07.2016 issued not being sustainable and the quashing of the same as made by the High Court is justified, the appropriate course that ought to have been followed by the High Court is to remit the matter to the appellant herein by directing them to provide opportunity to the respondent No.3 to file necessary documents in support of the completion certificate dated 24.12.2008 issued by the Architect so as to enable the appellant to make a factual determination and to arrive at an appropriate conclusion afresh by taking into consideration all aspects of the matter. Hence in that view it would be appropriate for us to order accordingly. 15. Notwithstanding the said conclusion what cannot be overlooked is also the fact that the respondents No.1 and 2 who had made a sizeable investment to purchase the property are the ones who would be ultimately affected and when a discretionary jurisdiction is being exercised by this Court the equities are also required to be worked out and balanced so as to protect the interest of all parties before the Court in the meanwhile. Hence pending such reconsideration an avenue is to be created for the respondent No.4 to issue the occupancy certificate so as to enable the respondents No.1 and 2 to occupy and at the same time the interest of the appellant is also required to be secured.
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1[ds]In that regard, the fact remains that as per time extended for completion of the construction, the same was to be completed on or before 31.12.2008. Though the respondents No.1 and 2 herein who were the writ petitioners before the High Court and respondent No.3 herein have sought to contend that the construction was complete in all respects prior to 31.12.2008 and, therefore, they are entitled to seek for issue of No dues Certificate so as to secure the occupancy certificate without levy of the additional lease premium, the case of the appellant herein is that the construction as required had not been completed except for creation of certain documents in the nature of completion certificate dated 24.12.20088. Having adverted to the said contention we find that essentially it is no doubt true that there is no privity of contract between the appellant and the respondents No.1 and 2 herein if looked at in technical terms. However, what cannot be lost sight is that the construction in question is put up by the respondent No.3 on a plot allotted by the appellant and such building constructed has been purchased by the respondents No.1 and 2 under registered Sale Deed dated 16.06.2011 for a valuable sale consideration. In that circumstance the respondents No.1 and 2 are desirous of occupying the building. Though the right in that regard in a normal circumstance is to be exercised and the specific performance for possession with Occupation Certificate is to be enforced against the respondent No.3 who is their vendor, the respondent No.4 which is the statutory authority for issuing the Occupation Certificate was also arrayed as a respondent. The respondents No.1 and 2 while seeking appropriate directions against the respondent No.4, having noticed that the impugned communication would come in their way of securing Occupation Certificate have chosen to assail the same13. In the present circumstance from what has been narrated above it is noticed that there is lacuna in the manner in which the appellant has also dealt with the matter. However, neither the High Court nor this Court while exercising the limited jurisdiction of judicial review can enter into the factual aspects to determine whether the construction in fact had been completed prior to 31.12.2018 before a decision is taken on that aspect by the appellant, based on the available records and spot verification if need be. This is more so when that aspect of the matter is disputed by the appellant herein. The respondents no doubt have relied on the completion certificate dated 24.12.2008, which as already taken note has been addressed to the respondent No.4 and the copy of the same has been furnished to the appellant while making a request for issue of the No dues Certificate. Essentially when the plot was allotted on certain conditions and the same stipulated completion of the construction in a time frame to avoid liability and when the statutory provisions required the No dues Certificate from the appellant so as to seek occupancy certificate from the respondent No.4 the primary procedure is for the respondent No.3 to submit necessary documents to the appellant to establish that the construction is put up within the time frame stipulated and to indicate that they are not liable to pay any additional lease premium. In the instant case we do not find that such procedure has been complied with. Even if the requirement was not complied and if the appellant was entitled to levy the additional lease premium the same was required to be done by adopting an appropriate procedure. Hence to that extent the observations of the High Court that the Principle of Natural Justice has not been complied by the appellant is justified. However, such lapse in procedure was not sufficient to nullify the demand in absolute terms. The High Court, in our view, shall have issued direction to the appellant Corporation to follow appropriate procedure in that regard and pass a reasoned order14. Further, we take note that the demand made in the impugned communication is for the period till 30.03.2007 though it is contended by the appellant that the construction has not been completed as on 31.12.2008 nor would the communication indicate as to when according to them the construction was completed. That apart though certain details were indicated with regard to the construction in the reminder letter dated 24.05.2013, in response to which the impugned communication is issued, there is no reference to the details therein. Hence, despite the manner in which the impugned communication dated 20.04.2016/01.07.2016 issued not being sustainable and the quashing of the same as made by the High Court is justified, the appropriate course that ought to have been followed by the High Court is to remit the matter to the appellant herein by directing them to provide opportunity to the respondent No.3 to file necessary documents in support of the completion certificate dated 24.12.2008 issued by the Architect so as to enable the appellant to make a factual determination and to arrive at an appropriate conclusion afresh by taking into consideration all aspects of the matter. Hence in that view it would be appropriate for us to order accordingly15. Notwithstanding the said conclusion what cannot be overlooked is also the fact that the respondents No.1 and 2 who had made a sizeable investment to purchase the property are the ones who would be ultimately affected and when a discretionary jurisdiction is being exercised by this Court the equities are also required to be worked out and balanced so as to protect the interest of all parties before the Court in the meanwhile. Hence pending such reconsideration an avenue is to be created for the respondent No.4 to issue the occupancy certificate so as to enable the respondents No.1 and 2 to occupy and at the same time the interest of the appellant is also required to be secured9. Further the covenant contained in the Sale Deed dated 16.06.2011 between respondents No. 1 and 3 in para 6 (G) creates an inter-se liability on mutual understanding with regard to the costs incurred for securing No dues Certificate from appellantTherefore, if the said aspect of the matter is kept in view the respondents No.1 and 2, to the limited extent can be considered as aggrieved persons for examination of their contention to the limited extent. The contentions to indicate that the construction was completed before 31.12.2008 and that respondent No.3 is therefore not liable to pay the amount indicated in the impugned communication cannot however be accepted at the instance of respondents No.1 and 2 since the fact of completion of construction within the time frame is to be established by respondent No. 3 alone. Hence the further examination herein is to be made keeping in view this aspect as well.
| 1 | 2,986 | 1,190 |
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of 1975 which read as hereunder: Regulations- 6 Completion of building, factory, structure or other work within the prescribed time – The Lessee shall complete building, factory structure or other work for which the land has been granted within the time prescribed by the Managing Director. Regulation – 7 Permission for extension of time – If the Intending Lessee obtains development permission and commences construction accordance with the conditions of agreement to lease made between him and the Corporation but has been unable to complete the construction within the time stipulated in the agreement to lease for reasons beyond his control, the Managing Director may permit extension of time for completion of buildings, factory, structure or other work on payment of additional premium. 12. The respondent No.3 has relied on the completion certificate dated 24.12.2008 issued by the architects addressed to the respondent No.4 herein. Though the respondent No.3 has sought to rely on the same, what is required to be taken note is the communication dated 09.02.2009 addressed by the respondent No.4 to respondent No.3 indicating the requirement to be complied for grant of occupancy certificate. What is inter alia sought therein is No dues Certificate from the appellant to be submitted to respondent No.4. The same would indicate that the respondent No.3 herein though claimed to have completed the construction before 31.12.2008 had only sought for issue of No dues Certificate from the appellant herein through the communication dated 11.08.2010. Subsequently, a letter dated 31.01.2011 was issued, whereafter the reminder dated 04.05.2013 was sent by respondent No.3 to the appellant seeking for No dues Certificate. In the said reminder dated 04.05.2013 reference is made to the occupancy certificate obtained for 78 per cent of the FSI which relates to A Wing and it has been indicated therein that the balance 22 per cent was completed by 31.12.2008. It is in reply to the said letter the impugned communication dated 20.04.2016/01.07.2016 was issued. 13. In the present circumstance from what has been narrated above it is noticed that there is lacuna in the manner in which the appellant has also dealt with the matter. However, neither the High Court nor this Court while exercising the limited jurisdiction of judicial review can enter into the factual aspects to determine whether the construction in fact had been completed prior to 31.12.2018 before a decision is taken on that aspect by the appellant, based on the available records and spot verification if need be. This is more so when that aspect of the matter is disputed by the appellant herein. The respondents no doubt have relied on the completion certificate dated 24.12.2008, which as already taken note has been addressed to the respondent No.4 and the copy of the same has been furnished to the appellant while making a request for issue of the No dues Certificate. Essentially when the plot was allotted on certain conditions and the same stipulated completion of the construction in a time frame to avoid liability and when the statutory provisions required the No dues Certificate from the appellant so as to seek occupancy certificate from the respondent No.4 the primary procedure is for the respondent No.3 to submit necessary documents to the appellant to establish that the construction is put up within the time frame stipulated and to indicate that they are not liable to pay any additional lease premium. In the instant case we do not find that such procedure has been complied with. Even if the requirement was not complied and if the appellant was entitled to levy the additional lease premium the same was required to be done by adopting an appropriate procedure. Hence to that extent the observations of the High Court that the Principle of Natural Justice has not been complied by the appellant is justified. However, such lapse in procedure was not sufficient to nullify the demand in absolute terms. The High Court, in our view, shall have issued direction to the appellant Corporation to follow appropriate procedure in that regard and pass a reasoned order. 14. Further, we take note that the demand made in the impugned communication is for the period till 30.03.2007 though it is contended by the appellant that the construction has not been completed as on 31.12.2008 nor would the communication indicate as to when according to them the construction was completed. That apart though certain details were indicated with regard to the construction in the reminder letter dated 24.05.2013, in response to which the impugned communication is issued, there is no reference to the details therein. Hence, despite the manner in which the impugned communication dated 20.04.2016/01.07.2016 issued not being sustainable and the quashing of the same as made by the High Court is justified, the appropriate course that ought to have been followed by the High Court is to remit the matter to the appellant herein by directing them to provide opportunity to the respondent No.3 to file necessary documents in support of the completion certificate dated 24.12.2008 issued by the Architect so as to enable the appellant to make a factual determination and to arrive at an appropriate conclusion afresh by taking into consideration all aspects of the matter. Hence in that view it would be appropriate for us to order accordingly. 15. Notwithstanding the said conclusion what cannot be overlooked is also the fact that the respondents No.1 and 2 who had made a sizeable investment to purchase the property are the ones who would be ultimately affected and when a discretionary jurisdiction is being exercised by this Court the equities are also required to be worked out and balanced so as to protect the interest of all parties before the Court in the meanwhile. Hence pending such reconsideration an avenue is to be created for the respondent No.4 to issue the occupancy certificate so as to enable the respondents No.1 and 2 to occupy and at the same time the interest of the appellant is also required to be secured.
### Response:
1
### Explanation:
true that there is no privity of contract between the appellant and the respondents No.1 and 2 herein if looked at in technical terms. However, what cannot be lost sight is that the construction in question is put up by the respondent No.3 on a plot allotted by the appellant and such building constructed has been purchased by the respondents No.1 and 2 under registered Sale Deed dated 16.06.2011 for a valuable sale consideration. In that circumstance the respondents No.1 and 2 are desirous of occupying the building. Though the right in that regard in a normal circumstance is to be exercised and the specific performance for possession with Occupation Certificate is to be enforced against the respondent No.3 who is their vendor, the respondent No.4 which is the statutory authority for issuing the Occupation Certificate was also arrayed as a respondent. The respondents No.1 and 2 while seeking appropriate directions against the respondent No.4, having noticed that the impugned communication would come in their way of securing Occupation Certificate have chosen to assail the same13. In the present circumstance from what has been narrated above it is noticed that there is lacuna in the manner in which the appellant has also dealt with the matter. However, neither the High Court nor this Court while exercising the limited jurisdiction of judicial review can enter into the factual aspects to determine whether the construction in fact had been completed prior to 31.12.2018 before a decision is taken on that aspect by the appellant, based on the available records and spot verification if need be. This is more so when that aspect of the matter is disputed by the appellant herein. The respondents no doubt have relied on the completion certificate dated 24.12.2008, which as already taken note has been addressed to the respondent No.4 and the copy of the same has been furnished to the appellant while making a request for issue of the No dues Certificate. Essentially when the plot was allotted on certain conditions and the same stipulated completion of the construction in a time frame to avoid liability and when the statutory provisions required the No dues Certificate from the appellant so as to seek occupancy certificate from the respondent No.4 the primary procedure is for the respondent No.3 to submit necessary documents to the appellant to establish that the construction is put up within the time frame stipulated and to indicate that they are not liable to pay any additional lease premium. In the instant case we do not find that such procedure has been complied with. Even if the requirement was not complied and if the appellant was entitled to levy the additional lease premium the same was required to be done by adopting an appropriate procedure. Hence to that extent the observations of the High Court that the Principle of Natural Justice has not been complied by the appellant is justified. However, such lapse in procedure was not sufficient to nullify the demand in absolute terms. The High Court, in our view, shall have issued direction to the appellant Corporation to follow appropriate procedure in that regard and pass a reasoned order14. Further, we take note that the demand made in the impugned communication is for the period till 30.03.2007 though it is contended by the appellant that the construction has not been completed as on 31.12.2008 nor would the communication indicate as to when according to them the construction was completed. That apart though certain details were indicated with regard to the construction in the reminder letter dated 24.05.2013, in response to which the impugned communication is issued, there is no reference to the details therein. Hence, despite the manner in which the impugned communication dated 20.04.2016/01.07.2016 issued not being sustainable and the quashing of the same as made by the High Court is justified, the appropriate course that ought to have been followed by the High Court is to remit the matter to the appellant herein by directing them to provide opportunity to the respondent No.3 to file necessary documents in support of the completion certificate dated 24.12.2008 issued by the Architect so as to enable the appellant to make a factual determination and to arrive at an appropriate conclusion afresh by taking into consideration all aspects of the matter. Hence in that view it would be appropriate for us to order accordingly15. Notwithstanding the said conclusion what cannot be overlooked is also the fact that the respondents No.1 and 2 who had made a sizeable investment to purchase the property are the ones who would be ultimately affected and when a discretionary jurisdiction is being exercised by this Court the equities are also required to be worked out and balanced so as to protect the interest of all parties before the Court in the meanwhile. Hence pending such reconsideration an avenue is to be created for the respondent No.4 to issue the occupancy certificate so as to enable the respondents No.1 and 2 to occupy and at the same time the interest of the appellant is also required to be secured9. Further the covenant contained in the Sale Deed dated 16.06.2011 between respondents No. 1 and 3 in para 6 (G) creates an inter-se liability on mutual understanding with regard to the costs incurred for securing No dues Certificate from appellantTherefore, if the said aspect of the matter is kept in view the respondents No.1 and 2, to the limited extent can be considered as aggrieved persons for examination of their contention to the limited extent. The contentions to indicate that the construction was completed before 31.12.2008 and that respondent No.3 is therefore not liable to pay the amount indicated in the impugned communication cannot however be accepted at the instance of respondents No.1 and 2 since the fact of completion of construction within the time frame is to be established by respondent No. 3 alone. Hence the further examination herein is to be made keeping in view this aspect as well.
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Moonga Devi & Others Vs. Radha Ballabh
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Mishra and put it on record of proceedings as to how and in what manner he had received the instructions to concede the question of the execution of the will which had been contested right from the time caveat was filed on January 9, 1966. Indeed, according to Mr. Chagla, Shri Mishra had made two admissions. The first was on January 31, 1966, when he stated that the validity of the will was not being challenged on the ground that the deceased was not in a sound disposing mind. Thereupon the issue was framed whether the will had been duly executed. The second admission or concession was made on October 3, 1966 when Shri Mishra did not even cross-examine the only attesting witness who had been produced. Mr. Chagla maintains that it was the bounden duty of the Court, particularly, when the appellants were illiterate ladies and it had been so pointed out in their petition made to the Court, to have taken good deal of care in the matter and not to have treated to whole case causally by disposing it of by merely making a comparison of the signatures himself which again was a course which was not legally permissible particularly in view of the circumstances of the present case.9. We find a lot of substance in the submissions of Mr. Chagla. We are wholly unable to comprehend how a matter of granting of probate could be disposed of in the manner in which it was done by the High Court. A narration of facts given in the earlier part of the judgment which has not been disputed on behalf of respondent Radha Ballabh fully establishes that this case has some very abnormal features. Here was an Advocate who had himself filed a caveat on behalf of the appellants in which the question of execution and genuineness of the will had been seriously challenged. In his presence an issue had been framed with regard to that matter. The execution of the will had to be proved in accordance with the provisions of Section 63 of the Indian Succession Act, 1925. The letters which had been written by Shri Mishras clerk contained no mention whatsoever of any instructions having been received from the appellants or of any statement having been made on the previous day conceding the execution of the will in accordance with those instructions. In these circumstances the only and the proper course which the High Court ought to have followed was either to ascertain from Shri Mishra about the exact circumstances in which he made that statement on October 3, 1966, and also refrained from cross-examining the attesting witness. In the absence of any satisfactory explanation by him the appellants should have been given a full opportunity to contest the grant of the probate and to cross-examine the sole attesting witness after recalling him. We are completely at a loss to understand how the learned Judge by mere comparison of the signatures on the will of the testator with his admitted signatures could decide the matter.10. It appears that according to the learned Judge the appellants could not be permitted to resile from the statement made by the Advocate because he was satisfied that the disputed signatures tallied with the admitted signatures. The first question to be determined was whether the admission had been made by the Advocate on any instructions given by the appellants. No attempt, however, was made to ascertain the true position in that direction which was indeed very unfortunate and regrettable. It is not merely the genuineness of signatures on which the proof of the execution of the will under Section 63 of the Indian Succession Act depends. It has to be proved that the will was attested in accordance with clause (c) of that section. That could not be done unless the statement of the attesting witness could be taken into consideration. In our judgment it could not be treated as evidence in the circumstances of the present case. It is abundantly clear that the manner in which the proceedings were conducted resulting in the grant of probate was such that there has been a gross miscarriage of justice. Learned counsel for the respondent Radha Ballabh has invited our attention to certain observations made in order of the High Court, dated November 12, 1968, by which the petition for grant of certificate to appeal to this court was rejected. It has been observed in that order and that matter was mentioned in the order of Mathur, J., dated July 10, 1967, that the caveat was signed only Sumitra Devi who had also filed her affidavit in respect thereof on January 9, 1966. Even if the signatures were of Sumitra Devi the application for the caveat was on behalf of the mother and the daughter and it was wholly immaterial if Moonga Devi had not signed it. It was clearly stated in the affidavit of Sumitra Devi in Para 5 that Moonga Devi was entitled to all the properties of Chhangur Sahu as his sole heir. It has also been emphasised in the above order that the application filed on behalf of the present appellants on February 22, 1957, was belated and that counsel Shri Kashi Nath Gupta through whom that application had been filed had made a statement that the said application had become infructuous, in view of the order passed by Mathur, J., on March 8, 1967. Reference was made to the statement of the attesting witness and the comparison made by Mathur, J., of the signatures. We find it very difficult to comprehend how these matters stated in the order disposing of the application for grant of a certificate can be of any avail or assistance. It was not the function of the court at that stage to re-examine the question on merits. At any rate, these facts were of no material consequence so far as the case of the appellants on the points considered by us was concerned.
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1[ds]9. We find a lot of substance in the submissions of Mr. Chagla. We are wholly unable to comprehend how a matter of granting of probate could be disposed of in the manner in which it was done by the High Court. A narration of facts given in the earlier part of the judgment which has not been disputed on behalf of respondent Radha Ballabh fully establishes that this case has some very abnormal features. Here was an Advocate who had himself filed a caveat on behalf of the appellants in which the question of execution and genuineness of the will had been seriously challenged. In his presence an issue had been framed with regard to that matter. The execution of the will had to be proved in accordance with the provisions of Section 63 of the Indian Succession Act, 1925. The letters which had been written by Shri Mishras clerk contained no mention whatsoever of any instructions having been received from the appellants or of any statement having been made on the previous day conceding the execution of the will in accordance with those instructions. In these circumstances the only and the proper course which the High Court ought to have followed was either to ascertain from Shri Mishra about the exact circumstances in which he made that statement on October 3, 1966, and also refrained fromthe attesting witness. In the absence of any satisfactory explanation by him the appellants should have been given a full opportunity to contest the grant of the probate and tothe sole attesting witness after recalling him. We are completely at a loss to understand how the learned Judge by mere comparison of the signatures on the will of the testator with his admitted signatures could decide the matter.10. It appears that according to the learned Judge the appellants could not be permitted to resile from the statement made by the Advocate because he was satisfied that the disputed signatures tallied with the admitted signatures. The first question to be determined was whether the admission had been made by the Advocate on any instructions given by the appellants. No attempt, however, was made to ascertain the true position in that direction which was indeed very unfortunate and regrettable. It is not merely the genuineness of signatures on which the proof of the execution of the will under Section 63 of the Indian Succession Act depends. It has to be proved that the will was attested in accordance with clause (c) of that section. That could not be done unless the statement of the attesting witness could be taken into consideration. In our judgment it could not be treated as evidence in the circumstances of the present case. It is abundantly clear that the manner in which the proceedings were conducted resulting in the grant of probate was such that there has been a gross miscarriage of justice.Learned counsel for the respondent Radha Ballabh has invited our attention to certain observations made in order of the High Court, dated November 12, 1968, by which the petition for grant of certificate to appeal to this court was rejected. It has been observed in that order and that matter was mentioned in the order of Mathur, J., dated July 10, 1967, that the caveat was signed only Sumitra Devi who had also filed her affidavit in respect thereof on January 9, 1966.Even if the signatures were of Sumitra Devi the application for the caveat was on behalf of the mother and the daughter and it was wholly immaterial if Moonga Devi had not signed it. It was clearly stated in the affidavit of Sumitra Devi in Para 5 that Moonga Devi was entitled to all the properties of Chhangur Sahu as his sole heir. It has also been emphasised in the above order that the application filed on behalf of the present appellants on February 22, 1957, was belated and that counsel Shri Kashi Nath Gupta through whom that application had been filed had made a statement that the said application had become infructuous, in view of the order passed by Mathur, J., on March 8, 1967. Reference was made to the statement of the attesting witness and the comparison made by Mathur, J., of the signatures. We find it very difficult to comprehend how these matters stated in the order disposing of the application for grant of a certificate can be of any avail or assistance. It was not the function of the court at that stage tothe question on merits. At any rate, these facts were of no material consequence so far as the case of the appellants on the points considered by us was concerned.
| 1 | 3,292 | 835 |
### 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:
Mishra and put it on record of proceedings as to how and in what manner he had received the instructions to concede the question of the execution of the will which had been contested right from the time caveat was filed on January 9, 1966. Indeed, according to Mr. Chagla, Shri Mishra had made two admissions. The first was on January 31, 1966, when he stated that the validity of the will was not being challenged on the ground that the deceased was not in a sound disposing mind. Thereupon the issue was framed whether the will had been duly executed. The second admission or concession was made on October 3, 1966 when Shri Mishra did not even cross-examine the only attesting witness who had been produced. Mr. Chagla maintains that it was the bounden duty of the Court, particularly, when the appellants were illiterate ladies and it had been so pointed out in their petition made to the Court, to have taken good deal of care in the matter and not to have treated to whole case causally by disposing it of by merely making a comparison of the signatures himself which again was a course which was not legally permissible particularly in view of the circumstances of the present case.9. We find a lot of substance in the submissions of Mr. Chagla. We are wholly unable to comprehend how a matter of granting of probate could be disposed of in the manner in which it was done by the High Court. A narration of facts given in the earlier part of the judgment which has not been disputed on behalf of respondent Radha Ballabh fully establishes that this case has some very abnormal features. Here was an Advocate who had himself filed a caveat on behalf of the appellants in which the question of execution and genuineness of the will had been seriously challenged. In his presence an issue had been framed with regard to that matter. The execution of the will had to be proved in accordance with the provisions of Section 63 of the Indian Succession Act, 1925. The letters which had been written by Shri Mishras clerk contained no mention whatsoever of any instructions having been received from the appellants or of any statement having been made on the previous day conceding the execution of the will in accordance with those instructions. In these circumstances the only and the proper course which the High Court ought to have followed was either to ascertain from Shri Mishra about the exact circumstances in which he made that statement on October 3, 1966, and also refrained from cross-examining the attesting witness. In the absence of any satisfactory explanation by him the appellants should have been given a full opportunity to contest the grant of the probate and to cross-examine the sole attesting witness after recalling him. We are completely at a loss to understand how the learned Judge by mere comparison of the signatures on the will of the testator with his admitted signatures could decide the matter.10. It appears that according to the learned Judge the appellants could not be permitted to resile from the statement made by the Advocate because he was satisfied that the disputed signatures tallied with the admitted signatures. The first question to be determined was whether the admission had been made by the Advocate on any instructions given by the appellants. No attempt, however, was made to ascertain the true position in that direction which was indeed very unfortunate and regrettable. It is not merely the genuineness of signatures on which the proof of the execution of the will under Section 63 of the Indian Succession Act depends. It has to be proved that the will was attested in accordance with clause (c) of that section. That could not be done unless the statement of the attesting witness could be taken into consideration. In our judgment it could not be treated as evidence in the circumstances of the present case. It is abundantly clear that the manner in which the proceedings were conducted resulting in the grant of probate was such that there has been a gross miscarriage of justice. Learned counsel for the respondent Radha Ballabh has invited our attention to certain observations made in order of the High Court, dated November 12, 1968, by which the petition for grant of certificate to appeal to this court was rejected. It has been observed in that order and that matter was mentioned in the order of Mathur, J., dated July 10, 1967, that the caveat was signed only Sumitra Devi who had also filed her affidavit in respect thereof on January 9, 1966. Even if the signatures were of Sumitra Devi the application for the caveat was on behalf of the mother and the daughter and it was wholly immaterial if Moonga Devi had not signed it. It was clearly stated in the affidavit of Sumitra Devi in Para 5 that Moonga Devi was entitled to all the properties of Chhangur Sahu as his sole heir. It has also been emphasised in the above order that the application filed on behalf of the present appellants on February 22, 1957, was belated and that counsel Shri Kashi Nath Gupta through whom that application had been filed had made a statement that the said application had become infructuous, in view of the order passed by Mathur, J., on March 8, 1967. Reference was made to the statement of the attesting witness and the comparison made by Mathur, J., of the signatures. We find it very difficult to comprehend how these matters stated in the order disposing of the application for grant of a certificate can be of any avail or assistance. It was not the function of the court at that stage to re-examine the question on merits. At any rate, these facts were of no material consequence so far as the case of the appellants on the points considered by us was concerned.
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### Explanation:
9. We find a lot of substance in the submissions of Mr. Chagla. We are wholly unable to comprehend how a matter of granting of probate could be disposed of in the manner in which it was done by the High Court. A narration of facts given in the earlier part of the judgment which has not been disputed on behalf of respondent Radha Ballabh fully establishes that this case has some very abnormal features. Here was an Advocate who had himself filed a caveat on behalf of the appellants in which the question of execution and genuineness of the will had been seriously challenged. In his presence an issue had been framed with regard to that matter. The execution of the will had to be proved in accordance with the provisions of Section 63 of the Indian Succession Act, 1925. The letters which had been written by Shri Mishras clerk contained no mention whatsoever of any instructions having been received from the appellants or of any statement having been made on the previous day conceding the execution of the will in accordance with those instructions. In these circumstances the only and the proper course which the High Court ought to have followed was either to ascertain from Shri Mishra about the exact circumstances in which he made that statement on October 3, 1966, and also refrained fromthe attesting witness. In the absence of any satisfactory explanation by him the appellants should have been given a full opportunity to contest the grant of the probate and tothe sole attesting witness after recalling him. We are completely at a loss to understand how the learned Judge by mere comparison of the signatures on the will of the testator with his admitted signatures could decide the matter.10. It appears that according to the learned Judge the appellants could not be permitted to resile from the statement made by the Advocate because he was satisfied that the disputed signatures tallied with the admitted signatures. The first question to be determined was whether the admission had been made by the Advocate on any instructions given by the appellants. No attempt, however, was made to ascertain the true position in that direction which was indeed very unfortunate and regrettable. It is not merely the genuineness of signatures on which the proof of the execution of the will under Section 63 of the Indian Succession Act depends. It has to be proved that the will was attested in accordance with clause (c) of that section. That could not be done unless the statement of the attesting witness could be taken into consideration. In our judgment it could not be treated as evidence in the circumstances of the present case. It is abundantly clear that the manner in which the proceedings were conducted resulting in the grant of probate was such that there has been a gross miscarriage of justice.Learned counsel for the respondent Radha Ballabh has invited our attention to certain observations made in order of the High Court, dated November 12, 1968, by which the petition for grant of certificate to appeal to this court was rejected. It has been observed in that order and that matter was mentioned in the order of Mathur, J., dated July 10, 1967, that the caveat was signed only Sumitra Devi who had also filed her affidavit in respect thereof on January 9, 1966.Even if the signatures were of Sumitra Devi the application for the caveat was on behalf of the mother and the daughter and it was wholly immaterial if Moonga Devi had not signed it. It was clearly stated in the affidavit of Sumitra Devi in Para 5 that Moonga Devi was entitled to all the properties of Chhangur Sahu as his sole heir. It has also been emphasised in the above order that the application filed on behalf of the present appellants on February 22, 1957, was belated and that counsel Shri Kashi Nath Gupta through whom that application had been filed had made a statement that the said application had become infructuous, in view of the order passed by Mathur, J., on March 8, 1967. Reference was made to the statement of the attesting witness and the comparison made by Mathur, J., of the signatures. We find it very difficult to comprehend how these matters stated in the order disposing of the application for grant of a certificate can be of any avail or assistance. It was not the function of the court at that stage tothe question on merits. At any rate, these facts were of no material consequence so far as the case of the appellants on the points considered by us was concerned.
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L.R. Ganapathi Thevar Vs. Sri Navaneethaswaraswami Devasthanam,Sikki
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Madras High Court and one of Andhra Pradesh High Court. The first decision to which our attention was invited is Mummina Demudu v. D. Papayyaraju Caru, AIR 1944 Mad 136 . That is a decision of Horwill, J. sitting singly. Therein it was held that when the legislature spoke in Section 8 (5) of the tenant acquiring occupancy right during the period between the passing of the find decree and the commencement of the Act it was referring to acquisition of occupancy rights otherwise than under the Act; the legislature must have intended by Section 8 (5) to exempt from the general operation of Section 6, all cases where the landholder had obtained a decree prior to 1st November, 1933, unless the tenant subsequent to the passing of the final decree had acquired occupancy right independently of the Act. Consequently where the landlord obtained a final decree referred to in Section 8 (5) before 1st November, 1933, the tenant can not be said to have acquired occupancy rights under Section 6 merely because he was in possession on 30th June 1934 so as to render Section 8 (5) inapplicable. We fail to see how this decision bears on the rule with which we are concerned in this appeal. In K. Atchanna v. Jayanti Seetharamaswami, AIR 1950 Mad 357 , Viswanatha Sastri, J. differed from the view taken by Horwill, J. in the decision cited above. This decision also does not bear on the question of law we are considering. In Thota Seshayya v. M. Vedanta Narasimhacharyulu, ILR (1955) Mad 1151 = (AIR 1955 Mad 252 ) a Bench of the Madras High Court while considering vires of Section 8 (5) observed:"We are satisfied that Section 8 (5) is giving some limited privileges for a limited period to the landholders who have obtained decrees before 1st November 1933, has acted on a classification based on some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained, and that the classification cannot be called arbitrary or without any substantial basis, and must be upheld as perfectly valid and not impugning in the least on Article 14 or 15 of the Constitution of India. We may add that tenants who have been given new occupancy rights under the third amendment where they had none before cannot reasonably complain of the restrictions put on the acquisition of such new occupancy rights in a few cases where justice requires such restrictions as in Section 8 (5). The tenants acquired the right only under those conditions and cannot very well complain about them."From these observations we are asked to spell out that the learned Judges had come to the conclusion that all contracts entered into between the landholders and their tenants during the twelve years period mentioned in Section 8 (5) came to an end at the end of that period. In the first place this conclusion does not necessarily flow from the observations quoted above. Even if such a conclusion can be spelled out the observations in question are mere obiter on the question or decision before us. That was also the view taken by the Division Bench of the Madras High Court in 1955-2 Mad LJ l12 = (AIR 1955 Mad 473 ) (supra).13. In V. Ramchandrayya v. M. Ranganavakamma, 1957-2 Andh WR 114 a Division Bench of the Andhra Pradesh High Court followed the decision of the Madras High Court in ILR (1955) Mad 1151 = (AIR 1955 Mad 252 ) (supra). Therein again the Court was not called upon to consider the scope of Section 8 (5).14. For the reasons already mentioned we are unable to hold that the appellant had acquired occupancy right in the suit properties.15. This takes us to the question whether the appellant can be considered as a cultivating tenant within the meaning of the Madras Cultivating Tenants Act, 1955. If he can be considered as a cultivating tenant then he cannot be evicted from the suit properties except in accordance with the provisions of that Act. In the Cultivating Tenants Act as it originally stood the definition of a cultivating tenant was as follows:"Cultivating tenant in relation to any land means a person who carries on personal cultivation on such land, under a tenancy agreement, express or implied, and includes (i) any such person who continues in possession of the land after the determination of tenancy agreement."If this definition had remained unaltered then on the basis of the findings of the trial court and the High Court the appellant could have been held as a cultivating tenant, as cultivation today is a complex process involving both mental as well as physical activity. But by the time this case came to be instituted the definition of cultivating tenant was amended by adding an explanation to the original definition. That explanation reads:"A person is said to carry on personal cultivation on a land when he contributes his own physical labour or that of the members of his family in the cultivation of that land."16. The true effect of the amended definition came up for consideration before a Division Bench of the Madras High Court in Mohamed Abubucker Labbai v. The Zamindar of Ettayapuram Estate Koilapatti, 1961-1 Mad LJ 256.Therein it was held that in order to fall within the definition of cultivating tenant a person should carry on personal cultivation which again requires that he should contribute physical labour. The use of physical labour includes physical strain, the use of muscles and sinews. Mere supervision of work, or maintaining of accounts or distributing the wages will not be such contribution of physical labour as to attract the definition.This view was upheld by this Court in S. N. Sudalaimuthu v. Palanivandayam, 1966-1 SCR 450 = (AIR 1966 SC 469 ) to which one of us was a party. In view of the said decision, it follows that on the facts found in this case, the appellant cannot be considered as a cultivating tenant.
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0[ds]5. We are unable to agree with Mr. Pattabhiraman that the High Court did not finally deride the appellants claim to occupancy right in the suit properties m A. S. No. 241 of 1949 and that it merely made some tentative observations in respect of the same leaving the matter for a fresh decision by the trialHigh Court has specifically gone into the appellants claim to occupancy right, examined the relevant provisions of the Madras Estates Land Act, took into consideration the decisions bearing on the point and thereafter came to a firm conclusion that the appellants claim is unsustainable. The case was remanded to the trial court for the trial of the issues that have not been decided earlier. Therefore we have now to see whether the plea of occupancy right can be gone into afresh.6. There is hardly any doubt that the trial court could not have gone into that issue again. It was bound by the Judgment of the High Court. It is also clear that that decision was binding on the Bench which heard the appeal. On this question judicial opinion appears to be unanimous and it is a reasonable view to take.7. We are unable to agree with the contention of the respondent that the decision of the High Court of Madras in A. S. No. 241 of 1949 on its file precludes the appellant from reagitating in this Court the plea that he has occupancy right in the suit properties.As it is open to the appellant to recanvass the correctness of the decision of the High Court regarding his claim for occupancy right, we shall now go into the merits of that claim. The suit land was in an Inam village but it was not an estate within the meaning of the Madras Estates Land Act as it originally stood; but it became an estate by virtue of the amending Act XVIII of 1936. The lands in dispute are not admittedly private lands. Prior to the amending Act came into force the respondent had obtained a decree for possession against the tenants who were then in the suit lands. It is also not in dispute that no tenant had obtained any occupancy right in those lands prior to 1936. Therefore all that we have to see is whether the appellant can be said to have acquired occupancy right in arose lands in view of the leases in his favour. For deciding this question we have to examine the scope of S. 6 (1) and Section 8 (5) of the Act as they now stand.The parties are agreed that the facts of this case satisfy the requirements of Section 8 (5) of the Act.That being so the respondent was entitled for a period of twelve years from the commencement of the Madras Estates Land (Third Amendment) Act, 1936 to admit any person to the possession of the suit lands on such terms as may be agreed upon between him and his lessee notwithstanding anything contained in the Act while Section 6 (1) is subject to the provisions of the Act, Section 8 (5) is not controlled by any other provision of the Act Therefore if the case falls both within Section 6 (1) as well as Section 8 (5) then the governing provision will be Sec. 8 (5) and not Section 6was urged on behalf of the appellant that the object of the Act is to confer occupancy right on the tenants in respect of all lands included the Inam excepting the Private lands of the Inamdar; at the same time the legislature thought that in respect of lands coming within the scope of Section 8 (5) a period of grace should be allowed to the Inamdar so that he may adjust his affairs; once that period is over all lands other than private lands would be governed by the provisions of Section 6 (1). Another facet of the same argument was that Section 6 (1) is the main provision; it has general application; that provision contains the policy and purpose of the law; Section 8 (5) is an exception; therefore Section 6 (1) should be construed liberally and Section 8 (5) should be strictly construed with a view to advance the purpose of the law. Further we were ask to take into aid the policy laid down in the proviso to Section 8 (5) while ascertaining the legislative intention behind Section 8 (5).(5).14. For the reasons already mentioned we are unable to hold that the appellant had acquired occupancy right in the suit properties.The true effect of the amended definition came up for consideration before a Division Bench of the Madras High Court in Mohamed Abubucker Labbai v. The Zamindar of Ettayapuram Estate Koilapatti, 1961-1 Mad LJ 256.Therein it was held that in order to fall within the definition of cultivating tenant a person should carry on personal cultivation which again requires that he should contribute physical labour. The use of physical labour includes physical strain, the use of muscles and sinews. Mere supervision of work, or maintaining of accounts or distributing the wages will not be such contribution of physical labour as to attract the definition.This view was upheld by this Court in S. N. Sudalaimuthu v. Palanivandayam, 1966-1 SCR 450 = (AIR 1966 SC 469 ) to which one of us was a party. In view of the said decision, it follows that on the facts found in this case, the appellant cannot be considered as a cultivating tenant.
| 0 | 3,898 | 1,004 |
### 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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Madras High Court and one of Andhra Pradesh High Court. The first decision to which our attention was invited is Mummina Demudu v. D. Papayyaraju Caru, AIR 1944 Mad 136 . That is a decision of Horwill, J. sitting singly. Therein it was held that when the legislature spoke in Section 8 (5) of the tenant acquiring occupancy right during the period between the passing of the find decree and the commencement of the Act it was referring to acquisition of occupancy rights otherwise than under the Act; the legislature must have intended by Section 8 (5) to exempt from the general operation of Section 6, all cases where the landholder had obtained a decree prior to 1st November, 1933, unless the tenant subsequent to the passing of the final decree had acquired occupancy right independently of the Act. Consequently where the landlord obtained a final decree referred to in Section 8 (5) before 1st November, 1933, the tenant can not be said to have acquired occupancy rights under Section 6 merely because he was in possession on 30th June 1934 so as to render Section 8 (5) inapplicable. We fail to see how this decision bears on the rule with which we are concerned in this appeal. In K. Atchanna v. Jayanti Seetharamaswami, AIR 1950 Mad 357 , Viswanatha Sastri, J. differed from the view taken by Horwill, J. in the decision cited above. This decision also does not bear on the question of law we are considering. In Thota Seshayya v. M. Vedanta Narasimhacharyulu, ILR (1955) Mad 1151 = (AIR 1955 Mad 252 ) a Bench of the Madras High Court while considering vires of Section 8 (5) observed:"We are satisfied that Section 8 (5) is giving some limited privileges for a limited period to the landholders who have obtained decrees before 1st November 1933, has acted on a classification based on some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained, and that the classification cannot be called arbitrary or without any substantial basis, and must be upheld as perfectly valid and not impugning in the least on Article 14 or 15 of the Constitution of India. We may add that tenants who have been given new occupancy rights under the third amendment where they had none before cannot reasonably complain of the restrictions put on the acquisition of such new occupancy rights in a few cases where justice requires such restrictions as in Section 8 (5). The tenants acquired the right only under those conditions and cannot very well complain about them."From these observations we are asked to spell out that the learned Judges had come to the conclusion that all contracts entered into between the landholders and their tenants during the twelve years period mentioned in Section 8 (5) came to an end at the end of that period. In the first place this conclusion does not necessarily flow from the observations quoted above. Even if such a conclusion can be spelled out the observations in question are mere obiter on the question or decision before us. That was also the view taken by the Division Bench of the Madras High Court in 1955-2 Mad LJ l12 = (AIR 1955 Mad 473 ) (supra).13. In V. Ramchandrayya v. M. Ranganavakamma, 1957-2 Andh WR 114 a Division Bench of the Andhra Pradesh High Court followed the decision of the Madras High Court in ILR (1955) Mad 1151 = (AIR 1955 Mad 252 ) (supra). Therein again the Court was not called upon to consider the scope of Section 8 (5).14. For the reasons already mentioned we are unable to hold that the appellant had acquired occupancy right in the suit properties.15. This takes us to the question whether the appellant can be considered as a cultivating tenant within the meaning of the Madras Cultivating Tenants Act, 1955. If he can be considered as a cultivating tenant then he cannot be evicted from the suit properties except in accordance with the provisions of that Act. In the Cultivating Tenants Act as it originally stood the definition of a cultivating tenant was as follows:"Cultivating tenant in relation to any land means a person who carries on personal cultivation on such land, under a tenancy agreement, express or implied, and includes (i) any such person who continues in possession of the land after the determination of tenancy agreement."If this definition had remained unaltered then on the basis of the findings of the trial court and the High Court the appellant could have been held as a cultivating tenant, as cultivation today is a complex process involving both mental as well as physical activity. But by the time this case came to be instituted the definition of cultivating tenant was amended by adding an explanation to the original definition. That explanation reads:"A person is said to carry on personal cultivation on a land when he contributes his own physical labour or that of the members of his family in the cultivation of that land."16. The true effect of the amended definition came up for consideration before a Division Bench of the Madras High Court in Mohamed Abubucker Labbai v. The Zamindar of Ettayapuram Estate Koilapatti, 1961-1 Mad LJ 256.Therein it was held that in order to fall within the definition of cultivating tenant a person should carry on personal cultivation which again requires that he should contribute physical labour. The use of physical labour includes physical strain, the use of muscles and sinews. Mere supervision of work, or maintaining of accounts or distributing the wages will not be such contribution of physical labour as to attract the definition.This view was upheld by this Court in S. N. Sudalaimuthu v. Palanivandayam, 1966-1 SCR 450 = (AIR 1966 SC 469 ) to which one of us was a party. In view of the said decision, it follows that on the facts found in this case, the appellant cannot be considered as a cultivating tenant.
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### Explanation:
5. We are unable to agree with Mr. Pattabhiraman that the High Court did not finally deride the appellants claim to occupancy right in the suit properties m A. S. No. 241 of 1949 and that it merely made some tentative observations in respect of the same leaving the matter for a fresh decision by the trialHigh Court has specifically gone into the appellants claim to occupancy right, examined the relevant provisions of the Madras Estates Land Act, took into consideration the decisions bearing on the point and thereafter came to a firm conclusion that the appellants claim is unsustainable. The case was remanded to the trial court for the trial of the issues that have not been decided earlier. Therefore we have now to see whether the plea of occupancy right can be gone into afresh.6. There is hardly any doubt that the trial court could not have gone into that issue again. It was bound by the Judgment of the High Court. It is also clear that that decision was binding on the Bench which heard the appeal. On this question judicial opinion appears to be unanimous and it is a reasonable view to take.7. We are unable to agree with the contention of the respondent that the decision of the High Court of Madras in A. S. No. 241 of 1949 on its file precludes the appellant from reagitating in this Court the plea that he has occupancy right in the suit properties.As it is open to the appellant to recanvass the correctness of the decision of the High Court regarding his claim for occupancy right, we shall now go into the merits of that claim. The suit land was in an Inam village but it was not an estate within the meaning of the Madras Estates Land Act as it originally stood; but it became an estate by virtue of the amending Act XVIII of 1936. The lands in dispute are not admittedly private lands. Prior to the amending Act came into force the respondent had obtained a decree for possession against the tenants who were then in the suit lands. It is also not in dispute that no tenant had obtained any occupancy right in those lands prior to 1936. Therefore all that we have to see is whether the appellant can be said to have acquired occupancy right in arose lands in view of the leases in his favour. For deciding this question we have to examine the scope of S. 6 (1) and Section 8 (5) of the Act as they now stand.The parties are agreed that the facts of this case satisfy the requirements of Section 8 (5) of the Act.That being so the respondent was entitled for a period of twelve years from the commencement of the Madras Estates Land (Third Amendment) Act, 1936 to admit any person to the possession of the suit lands on such terms as may be agreed upon between him and his lessee notwithstanding anything contained in the Act while Section 6 (1) is subject to the provisions of the Act, Section 8 (5) is not controlled by any other provision of the Act Therefore if the case falls both within Section 6 (1) as well as Section 8 (5) then the governing provision will be Sec. 8 (5) and not Section 6was urged on behalf of the appellant that the object of the Act is to confer occupancy right on the tenants in respect of all lands included the Inam excepting the Private lands of the Inamdar; at the same time the legislature thought that in respect of lands coming within the scope of Section 8 (5) a period of grace should be allowed to the Inamdar so that he may adjust his affairs; once that period is over all lands other than private lands would be governed by the provisions of Section 6 (1). Another facet of the same argument was that Section 6 (1) is the main provision; it has general application; that provision contains the policy and purpose of the law; Section 8 (5) is an exception; therefore Section 6 (1) should be construed liberally and Section 8 (5) should be strictly construed with a view to advance the purpose of the law. Further we were ask to take into aid the policy laid down in the proviso to Section 8 (5) while ascertaining the legislative intention behind Section 8 (5).(5).14. For the reasons already mentioned we are unable to hold that the appellant had acquired occupancy right in the suit properties.The true effect of the amended definition came up for consideration before a Division Bench of the Madras High Court in Mohamed Abubucker Labbai v. The Zamindar of Ettayapuram Estate Koilapatti, 1961-1 Mad LJ 256.Therein it was held that in order to fall within the definition of cultivating tenant a person should carry on personal cultivation which again requires that he should contribute physical labour. The use of physical labour includes physical strain, the use of muscles and sinews. Mere supervision of work, or maintaining of accounts or distributing the wages will not be such contribution of physical labour as to attract the definition.This view was upheld by this Court in S. N. Sudalaimuthu v. Palanivandayam, 1966-1 SCR 450 = (AIR 1966 SC 469 ) to which one of us was a party. In view of the said decision, it follows that on the facts found in this case, the appellant cannot be considered as a cultivating tenant.
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Baldev Singh Vs. Teja Singh Swatantar (Dead) & Ors
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tribute to Indian ability goes to the lesser level staff - the clerks and teachers, say - who bear the mechanical brunt of the Himalayan labours. When colossal heaps of votes are processed,: the tellers may make chance. mistakes even computers are not totally error-proof and, to err is human, physically fatigued and. brain-fagged as they may be occasionally. Scrutiny by vigilant officials and test checks may be good but jaded spirits cause slips. Complacent assumption of perfection, when the operation is gigantic, is a frailty of obdurate minds. That is why realism has induced Rule 63 and issuance of instructions to returning officers, rooted in practical wisdom. Given lively realism and imaginative understanding in the Returning Officers, many honestly sceptical and legitimately suspicious candidates who have lost the election may be stilled in their doubt by a recount, and the winner, after all, has no vested interest in error and cannot reasonably object. Such is the interpretative perspective of Rule 63which has wrongly been lost sight of by P. W. 5, the Returning Officer, in the present case.18. We frown upon frivolous and unreasonable refusals of recount by Returning Officers who forget the mandate of Rule 63 that allowance of recount is not the exceptional and refusal is restricted to cases where the demand itself is frivolous or unreasonable. These are strong words. The circumstances of each case decide. Where the margin of difference is minimal, the claim for a fresh count cannot be summarily brushed aside as futile or trumpery. If, as in this case, for the Sherpur segment a uniform view, founded in legal error, has led to wrong rejection of votes, rectification by a recount on the spot, when a demand was made, would have been reasonable. If formal defects had been misconstrued at some table as substantial infirmities, or vice versa resulting in wrongful reception or rejection, the sooner it was set right the better, especially when a - plea for a second inspection had been made on the spot. Many practical circumstances or legal misconceptions might honestly affect the legal or arithmetical accuracy of the result and prestige or fatigue should not inhibit a fresh, may be partial check. Of course, baseless or concocted claims for recount or fabricated grounds for inspection or specious complaints of mistakes in counting when the gap is huge are obvious cases of frivolous and unreasonable demands for recount. Mala fide aspersions on counting staff or false and untenable objections regarding validity of votes also fall under the same category. We mean to be illustrative, not exhaustive, but underline the need in appropriate cases, to be reasonably liberal in re-check and recount by Returning Officers. After all, fairness at the polls must not only be manifest but misgivings about the process must be erased at the earliest. Indeed, the Instructions to Officers are fairly clear and lay down sound guidelines.19. Judicial power to direct inspection and recount is undoubted but will be exercised sparingly.In a accent decision Chanda Sigh v. Shiv Ram, Civil Appeal No. 1185 of 1973, decided on 19-12-1974 = (reported in AIR 1975 SC 403 ) this Court observed:"A certain amount of stability in the electoral process is essential. If the counting of the ballots is interfered with by too frequent and flippant recounts by courts a new threat to the certainty of the poll system is introduced through the judicial instrument. Moreover, the secrecy of the ballot which is sacrosanct becomes exposed to deleterious prying if recount of votes is made easy. The general reaction, if there is judicial relaxation on this issue, may well be a fresh pressure on luckless candidates, particularly when the winning margin is only a few hundred votes as here, to ask for a recount. Micawberishly looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots. This may tend to a dangerous disorientation which invades the democratic order by injecting widespread scope for reopening of declared returns, unless the Court restricts recourse to recount to cases of genuine apprehension of miscount or illegality or other compulsions of justice necessitating such a drastic step."20. This implies no break from the liberal stance we have indicated for Returning Officers. Election petitions come to court after a month and a half and ripen for trial months later and then the appeal, statutorily vested, inevitably follows. In this operation litigation which is necessarily protracted, liberal recount or lax re-inspection of votes may create belated uncertainties, false hopes and a hovering sense of suspense, long after elections are over, governments formed and legislatures begin to function. Moreover, while a recount, within the counting station, with the entire machinery familiar with the process still avai1able at hand and operational, is one thing, re-inspection and recount, which is an elaborate undertaking with mechanics and machinery of a specialised nature and which cannot be judicially brought into existence without an amount of time toil and expense, is a different thing. This Court has laid down clear principles on the subject, meeting the ends of justice, but, without opening the flood-gates of recounts on flimsy grounds. Less election litigation is a sign of the peoples adult franchise maturity and adventurist election petitions are an infantile disease to be suppressed. Our view of Rule 63, the relevant wholesome instructions by the Commission and the rulings of this Court, harmonise with the overall considerations of law and democracy.21. Coming to the facts of this case, we have already indicated that no good grounds for a Court order for inspection and recount, particularly after the Sherpur experiment, exist. Although we are free to admit that an imaginative Returning Officer might have quietened the qualms and silenced the scepticism of the appellant by a test check or partial recount, proceeding to a full recount if serious errors were found, we are inclined to agree with the High Court, there being no reason to reverse its elaborately discussed conclusions, and the relief of recount was rightly rejected.
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0[ds]11. The Court negatived the charges on sound grounds and we are disposed to agree. We feel, with the learned Judge, that had there been any manipulation by the counting staff the matter would have been immediately taken to the notice of the Returning Officer and reference to it would have been made in the two applications to the Returning Officer for recount or at least in the application to the Election Commission for inspection made on March 17, 1971. Their silence really silences the grievance. Indeed, it must be stated with satisfaction that although Government officials at the subordinate level have been, time and again, going on strikes, starting agitations and making demands almost everywhere in the country, hardly any serious or widespread instance of foul play has been established in their functioning in the election process over the last span of a quarter of a century. Moreover, the contention of biased behaviour of the counting staff is nailed by the revealing accuracy disclosed in the recount of the Sherpur segment and the marginal error being more or less noticed in the case of both candidates. The activist, nonpartisan presence of senior officers to supervise the counting and deciding of disputes regarding the reception and rejection of votes etc., was a reassuring factor.The general charge of hostility of subordinate Government staff in counting is unproved, as already held. Even so, we must underscore the utmost importance of the independence, fairness and activism of the Election personnel from the Commission to the counting staff. If their discretion is sensitive to the party in power or their antipathies are inflamed during election time, the cherished parliamentary system will be the casualty. Every conscientious citizen has a public duty to desist from making reckless mud-slinging and tendentious smearing of the men who make the machinery, prompted by chimerical doubts, and there is cast a countervailing obligation on all who make up the election personnel to be knowledgeable, sensible, sympathetic, sensitive and stern to every candidate alike. Even seeming stiffness or chumming up or ignorant obstinacy will discredit the instrument.Another fatal blow to the plea for recount of other segments pressed by the petitioner-appellant needs mention. We have already stated that the petitioner, with what would appear to be uncanny intuition, stated in para 9 of his petition, details of wrongful reception of invalid votes etc. with numerical precision and wonder of observation possible under the present system of counting only by resort to resourceful fiction or extra-sensory perception. Disingenuous averments do not promote prospects of judicial recount and will he dismissed as devices to comply with requirements suggested in some ruling or other. Counsel did press before us many citations, a few of which alone we propose to refer to, the ground covered being overlapping, the law laid down, the same, and the determining role being the judicial response to the key facts of each case.In the light of what has been said above and with due regard to the findings of the High Court, we are unable to grant a recount on a comprehensivein the application to the Election Commission the plea for inspection of the used ballot papers is primarily confined to Dhuri Assembly segment and the rejected ballots of other assembly segments. Thus it is a fair inference to draw that the grievance centered round the Dhuri, segment. In regard to that plea, the averment in para 9 (a) gives details including figures, absence of seal and other irregularities like multiple marking and voting. Not a scintilla of evidence on which a court could act is present on the record prima facie to prove what has been alleged. Therefore the refusal of recount was not improper.16. This case has made us reflect anxiously on the dichotomy in the matter of recount between the counting station and the court hall. We think it necessary to elucidate the legal lines to be drawn at the two stages, as this is a fit case which calls for such demarcation.Given lively realism and imaginative understanding in the Returning Officers, many honestly sceptical and legitimately suspicious candidates who have lost the election may be stilled in their doubt by a recount, and the winner, after all, has no vested interest in error and cannot reasonably object. Such is the interpretative perspective of Rule 63which has wrongly been lost sight of by P. W. 5, the Returning Officer, in the present case.18. We frown upon frivolous and unreasonable refusals of recount by Returning Officers who forget the mandate of Rule 63 that allowance of recount is not the exceptional and refusal is restricted to cases where the demand itself is frivolous or unreasonable. These are strong words. The circumstances of each caseCourt has laid down clear principles on the subject, meeting the ends of justice, but, without opening the flood-gates of recounts on flimsy grounds. Less election litigation is a sign of the peoples adult franchise maturity and adventurist election petitions are an infantile disease to be suppressed. Our view of Rule 63, the relevant wholesome instructions by the Commission and the rulings of this Court, harmonise with the overall considerations of law and democracy.21. Coming to the facts of this case, we have already indicated that no good grounds for a Court order for inspection and recount, particularly after the Sherpur experiment, exist. Although we are free to admit that an imaginative Returning Officer might have quietened the qualms and silenced the scepticism of the appellant by a test check or partial recount, proceeding to a full recount if serious errors were found, we are inclined to agree with the High Court, there being no reason to reverse its elaborately discussed conclusions, and the relief of recount was rightly rejected.
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### 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:
tribute to Indian ability goes to the lesser level staff - the clerks and teachers, say - who bear the mechanical brunt of the Himalayan labours. When colossal heaps of votes are processed,: the tellers may make chance. mistakes even computers are not totally error-proof and, to err is human, physically fatigued and. brain-fagged as they may be occasionally. Scrutiny by vigilant officials and test checks may be good but jaded spirits cause slips. Complacent assumption of perfection, when the operation is gigantic, is a frailty of obdurate minds. That is why realism has induced Rule 63 and issuance of instructions to returning officers, rooted in practical wisdom. Given lively realism and imaginative understanding in the Returning Officers, many honestly sceptical and legitimately suspicious candidates who have lost the election may be stilled in their doubt by a recount, and the winner, after all, has no vested interest in error and cannot reasonably object. Such is the interpretative perspective of Rule 63which has wrongly been lost sight of by P. W. 5, the Returning Officer, in the present case.18. We frown upon frivolous and unreasonable refusals of recount by Returning Officers who forget the mandate of Rule 63 that allowance of recount is not the exceptional and refusal is restricted to cases where the demand itself is frivolous or unreasonable. These are strong words. The circumstances of each case decide. Where the margin of difference is minimal, the claim for a fresh count cannot be summarily brushed aside as futile or trumpery. If, as in this case, for the Sherpur segment a uniform view, founded in legal error, has led to wrong rejection of votes, rectification by a recount on the spot, when a demand was made, would have been reasonable. If formal defects had been misconstrued at some table as substantial infirmities, or vice versa resulting in wrongful reception or rejection, the sooner it was set right the better, especially when a - plea for a second inspection had been made on the spot. Many practical circumstances or legal misconceptions might honestly affect the legal or arithmetical accuracy of the result and prestige or fatigue should not inhibit a fresh, may be partial check. Of course, baseless or concocted claims for recount or fabricated grounds for inspection or specious complaints of mistakes in counting when the gap is huge are obvious cases of frivolous and unreasonable demands for recount. Mala fide aspersions on counting staff or false and untenable objections regarding validity of votes also fall under the same category. We mean to be illustrative, not exhaustive, but underline the need in appropriate cases, to be reasonably liberal in re-check and recount by Returning Officers. After all, fairness at the polls must not only be manifest but misgivings about the process must be erased at the earliest. Indeed, the Instructions to Officers are fairly clear and lay down sound guidelines.19. Judicial power to direct inspection and recount is undoubted but will be exercised sparingly.In a accent decision Chanda Sigh v. Shiv Ram, Civil Appeal No. 1185 of 1973, decided on 19-12-1974 = (reported in AIR 1975 SC 403 ) this Court observed:"A certain amount of stability in the electoral process is essential. If the counting of the ballots is interfered with by too frequent and flippant recounts by courts a new threat to the certainty of the poll system is introduced through the judicial instrument. Moreover, the secrecy of the ballot which is sacrosanct becomes exposed to deleterious prying if recount of votes is made easy. The general reaction, if there is judicial relaxation on this issue, may well be a fresh pressure on luckless candidates, particularly when the winning margin is only a few hundred votes as here, to ask for a recount. Micawberishly looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots. This may tend to a dangerous disorientation which invades the democratic order by injecting widespread scope for reopening of declared returns, unless the Court restricts recourse to recount to cases of genuine apprehension of miscount or illegality or other compulsions of justice necessitating such a drastic step."20. This implies no break from the liberal stance we have indicated for Returning Officers. Election petitions come to court after a month and a half and ripen for trial months later and then the appeal, statutorily vested, inevitably follows. In this operation litigation which is necessarily protracted, liberal recount or lax re-inspection of votes may create belated uncertainties, false hopes and a hovering sense of suspense, long after elections are over, governments formed and legislatures begin to function. Moreover, while a recount, within the counting station, with the entire machinery familiar with the process still avai1able at hand and operational, is one thing, re-inspection and recount, which is an elaborate undertaking with mechanics and machinery of a specialised nature and which cannot be judicially brought into existence without an amount of time toil and expense, is a different thing. This Court has laid down clear principles on the subject, meeting the ends of justice, but, without opening the flood-gates of recounts on flimsy grounds. Less election litigation is a sign of the peoples adult franchise maturity and adventurist election petitions are an infantile disease to be suppressed. Our view of Rule 63, the relevant wholesome instructions by the Commission and the rulings of this Court, harmonise with the overall considerations of law and democracy.21. Coming to the facts of this case, we have already indicated that no good grounds for a Court order for inspection and recount, particularly after the Sherpur experiment, exist. Although we are free to admit that an imaginative Returning Officer might have quietened the qualms and silenced the scepticism of the appellant by a test check or partial recount, proceeding to a full recount if serious errors were found, we are inclined to agree with the High Court, there being no reason to reverse its elaborately discussed conclusions, and the relief of recount was rightly rejected.
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0
### Explanation:
11. The Court negatived the charges on sound grounds and we are disposed to agree. We feel, with the learned Judge, that had there been any manipulation by the counting staff the matter would have been immediately taken to the notice of the Returning Officer and reference to it would have been made in the two applications to the Returning Officer for recount or at least in the application to the Election Commission for inspection made on March 17, 1971. Their silence really silences the grievance. Indeed, it must be stated with satisfaction that although Government officials at the subordinate level have been, time and again, going on strikes, starting agitations and making demands almost everywhere in the country, hardly any serious or widespread instance of foul play has been established in their functioning in the election process over the last span of a quarter of a century. Moreover, the contention of biased behaviour of the counting staff is nailed by the revealing accuracy disclosed in the recount of the Sherpur segment and the marginal error being more or less noticed in the case of both candidates. The activist, nonpartisan presence of senior officers to supervise the counting and deciding of disputes regarding the reception and rejection of votes etc., was a reassuring factor.The general charge of hostility of subordinate Government staff in counting is unproved, as already held. Even so, we must underscore the utmost importance of the independence, fairness and activism of the Election personnel from the Commission to the counting staff. If their discretion is sensitive to the party in power or their antipathies are inflamed during election time, the cherished parliamentary system will be the casualty. Every conscientious citizen has a public duty to desist from making reckless mud-slinging and tendentious smearing of the men who make the machinery, prompted by chimerical doubts, and there is cast a countervailing obligation on all who make up the election personnel to be knowledgeable, sensible, sympathetic, sensitive and stern to every candidate alike. Even seeming stiffness or chumming up or ignorant obstinacy will discredit the instrument.Another fatal blow to the plea for recount of other segments pressed by the petitioner-appellant needs mention. We have already stated that the petitioner, with what would appear to be uncanny intuition, stated in para 9 of his petition, details of wrongful reception of invalid votes etc. with numerical precision and wonder of observation possible under the present system of counting only by resort to resourceful fiction or extra-sensory perception. Disingenuous averments do not promote prospects of judicial recount and will he dismissed as devices to comply with requirements suggested in some ruling or other. Counsel did press before us many citations, a few of which alone we propose to refer to, the ground covered being overlapping, the law laid down, the same, and the determining role being the judicial response to the key facts of each case.In the light of what has been said above and with due regard to the findings of the High Court, we are unable to grant a recount on a comprehensivein the application to the Election Commission the plea for inspection of the used ballot papers is primarily confined to Dhuri Assembly segment and the rejected ballots of other assembly segments. Thus it is a fair inference to draw that the grievance centered round the Dhuri, segment. In regard to that plea, the averment in para 9 (a) gives details including figures, absence of seal and other irregularities like multiple marking and voting. Not a scintilla of evidence on which a court could act is present on the record prima facie to prove what has been alleged. Therefore the refusal of recount was not improper.16. This case has made us reflect anxiously on the dichotomy in the matter of recount between the counting station and the court hall. We think it necessary to elucidate the legal lines to be drawn at the two stages, as this is a fit case which calls for such demarcation.Given lively realism and imaginative understanding in the Returning Officers, many honestly sceptical and legitimately suspicious candidates who have lost the election may be stilled in their doubt by a recount, and the winner, after all, has no vested interest in error and cannot reasonably object. Such is the interpretative perspective of Rule 63which has wrongly been lost sight of by P. W. 5, the Returning Officer, in the present case.18. We frown upon frivolous and unreasonable refusals of recount by Returning Officers who forget the mandate of Rule 63 that allowance of recount is not the exceptional and refusal is restricted to cases where the demand itself is frivolous or unreasonable. These are strong words. The circumstances of each caseCourt has laid down clear principles on the subject, meeting the ends of justice, but, without opening the flood-gates of recounts on flimsy grounds. Less election litigation is a sign of the peoples adult franchise maturity and adventurist election petitions are an infantile disease to be suppressed. Our view of Rule 63, the relevant wholesome instructions by the Commission and the rulings of this Court, harmonise with the overall considerations of law and democracy.21. Coming to the facts of this case, we have already indicated that no good grounds for a Court order for inspection and recount, particularly after the Sherpur experiment, exist. Although we are free to admit that an imaginative Returning Officer might have quietened the qualms and silenced the scepticism of the appellant by a test check or partial recount, proceeding to a full recount if serious errors were found, we are inclined to agree with the High Court, there being no reason to reverse its elaborately discussed conclusions, and the relief of recount was rightly rejected.
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Vijai Bahadur Vs. The State of Uttar Pradesh
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Alagiriswami, J. 1. This is an appeal by special leave against the judgment of the High Court of Allahabad confirming the conviction of the appellant and sentence of death passed on him by the learned Additional Sessions Judge of Etawah under Sections 302 and 307, I.P.C. The appellant and his brother Radhey Shyam had been tried together. Radhey Shyam under Sections 302 ad 307 read with Section 34 of the I.P.C. Radhey Shyams appeal was allowed and he was acquitted. 2. On 22nd September, 1969 the appellant shot to death one Hazuri Singh a resident of his village Purwa Kamal Singh. It appears that a few days earlier the appellant had dragged a boy, Collector Singh to a field for the purpose of committing sodomy on him. He escaped and on coming to hear of it his unless Gyan Singh and Suraj Singh attacked the appellant the next day and caused him simple injuries. The appellant complained against these two persons and two others. On 21st September, 1969 the appellant along with his brother went to the house of the grandfather of Collector Singh and started abusing Gyan Singh and others in front of the house of Hazuri Singh. When Hazuri Singh asked the appellant and his brother not to indulge in abuses in front of his house, the appellant told him that he would deal with him later. The next morning when Hazuri Singh had gone to the house of Sita Ram Pradhan (P. W. 2) to tell him about what had happened the previous day, Ranjit Singh brother of Sita Ram and another person were sitting there. At that time the appellant, came there with a gun, while his brother had a lathi. The appellants brother Radhey Shyam, challenged Hazuri Singh and the appellant fired at Hazuri Singh who fell down and died. The appellant then reloaded his gun and fired again. this time at Ranjit Sing. And thereafter both of them ran away. 3. The appellants case was one of complete denial. He claimed that he had deposited his gun with an arms dealer in Etawah even on the 21st and the whole case against him had been engineered by his enemies. We have carefully gone through the evidence and the judgment of the learned Sessions Judge as well as the High Court, and are of the opinion that there is no substance in the appellants case. It was argued before us that the F.I.R. did not mention about Collector Singh. But the beating itself is mentioned there. The fact that the appellant was beaten by Gyan Singh. Suraj Singh and others is clear from the report which the appellant himself made to the police. It is not surprising that the close relatives of Collector Singh did not like to mention about the unsavory episode regarding Collector Singh and the fact that this incident was not mentioned or that Collector Singh has not been examined does not in any way detract from the prosecution case regarding the motive for the offence. The motive has been spoken to by the brother of the deceased, Lakhan Singh (P. W. 1) Gyan Singh (P. W. 5) and Ajudhi (P. W. 6). 4. As far as the actual incident itself was concerned, there is the evidence of Lakhan Singh, who was present at the scene of occurrence. The evidence of Sita Ram Pradhan (P. W. 2.) and his brother. Ranjit Singh (P. W. 3), who was himself injured in the incident cannot be easily brushed aside. The occurrence took place in front of P. W. 2s house and the empty cartridge and pellets had been recovered near the scene of occurrence. Though it is true that there were litigations between P. Ws. 2 and 3 on the one hand and the appellant on the other, the facts speak more eloquently here than any witness could speak. In any case there is no reason why any of the witnesses should leave out the real assailants and falsely implicate an innocent person. One could at least understand ones attempt to implicate his enemies in addition to the real culprit. But that is not the case here. The evidence of the Ballistic Expert establishes beyond doubt that the cartridge which caused Hazuri Singhs death was fired from the appellants gun. 5. Some criticism was made about the recovery of the gun and the cartridge and the evidence of the ballistic expert which was wholly without substance and which we do not feel called upon to refer to. The appellants claim that he had deposited his gun with the arms dealer even on the 21st was clearly disproved by the evidence of the dealer as well as his records. The appellant seems to have gone and deposited the gun with the arms dealer after having committed the crime. He says that he deposited the gun because he came to know that the Sub-Inspector had made a report for withdrawing the licence for his gun, but does not explain how he came to know about Sub-Inspectors report. The learned advocate for the appellant tried to build up an impossible story that the Sub-Inspector himself had fired a cartridge from the appellants gun after he had recovered it from the arms dealer. There is no reason why a Sub-Inspector should have done so. 6. The learned advocate for the appellant also took us through the medical evidence. We see nothing in it to support the appellants case in any way. We are satisfied that the offence committed by the appellant has been amply established. There are no externating circumstances and the sentence of death passed on the appellant by the learned Sessions Judge and confirmed by the learned Judge of the High Court is the appropriate one in the circumstances of this case.
|
0[ds]We have carefully gone through the evidence and the judgment of the learned Sessions Judge as well as the High Court, and are of the opinion that there is no substance in the appellants case.It was argued before us that the F.I.R. did not mention about CollectorSingh.But the beating itself is mentioned there. The fact that the appellant was beaten by GyanSingh.Suraj Singh and others is clear from the report which the appellant himself made to the police. It is not surprising that the close relatives of Collector Singh did not like to mention about the unsavory episode regarding Collector Singh and the fact that this incident was not mentioned or that Collector Singh has not been examined does not in any way detract from the prosecution case regarding the motive for the offence. The motive has been spoken to by the brother of the deceased, Lakhan Singh (P. W. 1) Gyan Singh (P. W. 5) and Ajudhi (P. W. 6)4. As far as the actual incident itself was concerned, there is the evidence of Lakhan Singh, who was present at the scene of occurrence. The evidence of Sita Ram Pradhan (P. W. 2.) and his brother. Ranjit Singh (P. W. 3), who was himself injured in the incident cannot be easily brushed aside. The occurrence took place in front of P. W. 2s house and the empty cartridge and pellets had been recovered near the scene of occurrence. Though it is true that there were litigations between P. Ws. 2 and 3 on the one hand and the appellant on the other, the facts speak more eloquently here than any witness could speak. In any case there is no reason why any of the witnesses should leave out the real assailants and falsely implicate an innocent person. One could at least understand ones attempt to implicate his enemies in addition to the real culprit. But that is not the case here. The evidence of the Ballistic Expert establishes beyond doubt that the cartridge which caused Hazuri Singhs death was fired from the appellants gun5. Some criticism was made about the recovery of the gun and the cartridge and the evidence of the ballistic expert which was wholly without substance and which we do not feel called upon to refer. The appellants claim that he had deposited his gun with the arms dealer even on the 21st was clearly disproved by the evidence of the dealer as well as his records. The appellant seems to have gone and deposited the gun with the arms dealer after having committed the crime. He says that he deposited the gun because he came to know that ther had made a report for withdrawing the licence for his gun, but does not explain how he came to know abouts report. The learned advocate for the appellant tried to build up an impossible story that ther himself had fired a cartridge from the appellants gun after he had recovered it from the arms dealer. There is no reason why ar should have done so6. The learned advocate for the appellant also took us through the medical evidence.We see nothing in it to support the appellants case in any way. We are satisfied that the offence committed by the appellant has been amply established. There are no externating circumstances and the sentence of death passed on the appellant by the learned Sessions Judge and confirmed by the learned Judge of the High Court is the appropriate one in the circumstances of this case.
| 0 | 1,051 | 636 |
### 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:
Alagiriswami, J. 1. This is an appeal by special leave against the judgment of the High Court of Allahabad confirming the conviction of the appellant and sentence of death passed on him by the learned Additional Sessions Judge of Etawah under Sections 302 and 307, I.P.C. The appellant and his brother Radhey Shyam had been tried together. Radhey Shyam under Sections 302 ad 307 read with Section 34 of the I.P.C. Radhey Shyams appeal was allowed and he was acquitted. 2. On 22nd September, 1969 the appellant shot to death one Hazuri Singh a resident of his village Purwa Kamal Singh. It appears that a few days earlier the appellant had dragged a boy, Collector Singh to a field for the purpose of committing sodomy on him. He escaped and on coming to hear of it his unless Gyan Singh and Suraj Singh attacked the appellant the next day and caused him simple injuries. The appellant complained against these two persons and two others. On 21st September, 1969 the appellant along with his brother went to the house of the grandfather of Collector Singh and started abusing Gyan Singh and others in front of the house of Hazuri Singh. When Hazuri Singh asked the appellant and his brother not to indulge in abuses in front of his house, the appellant told him that he would deal with him later. The next morning when Hazuri Singh had gone to the house of Sita Ram Pradhan (P. W. 2) to tell him about what had happened the previous day, Ranjit Singh brother of Sita Ram and another person were sitting there. At that time the appellant, came there with a gun, while his brother had a lathi. The appellants brother Radhey Shyam, challenged Hazuri Singh and the appellant fired at Hazuri Singh who fell down and died. The appellant then reloaded his gun and fired again. this time at Ranjit Sing. And thereafter both of them ran away. 3. The appellants case was one of complete denial. He claimed that he had deposited his gun with an arms dealer in Etawah even on the 21st and the whole case against him had been engineered by his enemies. We have carefully gone through the evidence and the judgment of the learned Sessions Judge as well as the High Court, and are of the opinion that there is no substance in the appellants case. It was argued before us that the F.I.R. did not mention about Collector Singh. But the beating itself is mentioned there. The fact that the appellant was beaten by Gyan Singh. Suraj Singh and others is clear from the report which the appellant himself made to the police. It is not surprising that the close relatives of Collector Singh did not like to mention about the unsavory episode regarding Collector Singh and the fact that this incident was not mentioned or that Collector Singh has not been examined does not in any way detract from the prosecution case regarding the motive for the offence. The motive has been spoken to by the brother of the deceased, Lakhan Singh (P. W. 1) Gyan Singh (P. W. 5) and Ajudhi (P. W. 6). 4. As far as the actual incident itself was concerned, there is the evidence of Lakhan Singh, who was present at the scene of occurrence. The evidence of Sita Ram Pradhan (P. W. 2.) and his brother. Ranjit Singh (P. W. 3), who was himself injured in the incident cannot be easily brushed aside. The occurrence took place in front of P. W. 2s house and the empty cartridge and pellets had been recovered near the scene of occurrence. Though it is true that there were litigations between P. Ws. 2 and 3 on the one hand and the appellant on the other, the facts speak more eloquently here than any witness could speak. In any case there is no reason why any of the witnesses should leave out the real assailants and falsely implicate an innocent person. One could at least understand ones attempt to implicate his enemies in addition to the real culprit. But that is not the case here. The evidence of the Ballistic Expert establishes beyond doubt that the cartridge which caused Hazuri Singhs death was fired from the appellants gun. 5. Some criticism was made about the recovery of the gun and the cartridge and the evidence of the ballistic expert which was wholly without substance and which we do not feel called upon to refer to. The appellants claim that he had deposited his gun with the arms dealer even on the 21st was clearly disproved by the evidence of the dealer as well as his records. The appellant seems to have gone and deposited the gun with the arms dealer after having committed the crime. He says that he deposited the gun because he came to know that the Sub-Inspector had made a report for withdrawing the licence for his gun, but does not explain how he came to know about Sub-Inspectors report. The learned advocate for the appellant tried to build up an impossible story that the Sub-Inspector himself had fired a cartridge from the appellants gun after he had recovered it from the arms dealer. There is no reason why a Sub-Inspector should have done so. 6. The learned advocate for the appellant also took us through the medical evidence. We see nothing in it to support the appellants case in any way. We are satisfied that the offence committed by the appellant has been amply established. There are no externating circumstances and the sentence of death passed on the appellant by the learned Sessions Judge and confirmed by the learned Judge of the High Court is the appropriate one in the circumstances of this case.
### Response:
0
### Explanation:
We have carefully gone through the evidence and the judgment of the learned Sessions Judge as well as the High Court, and are of the opinion that there is no substance in the appellants case.It was argued before us that the F.I.R. did not mention about CollectorSingh.But the beating itself is mentioned there. The fact that the appellant was beaten by GyanSingh.Suraj Singh and others is clear from the report which the appellant himself made to the police. It is not surprising that the close relatives of Collector Singh did not like to mention about the unsavory episode regarding Collector Singh and the fact that this incident was not mentioned or that Collector Singh has not been examined does not in any way detract from the prosecution case regarding the motive for the offence. The motive has been spoken to by the brother of the deceased, Lakhan Singh (P. W. 1) Gyan Singh (P. W. 5) and Ajudhi (P. W. 6)4. As far as the actual incident itself was concerned, there is the evidence of Lakhan Singh, who was present at the scene of occurrence. The evidence of Sita Ram Pradhan (P. W. 2.) and his brother. Ranjit Singh (P. W. 3), who was himself injured in the incident cannot be easily brushed aside. The occurrence took place in front of P. W. 2s house and the empty cartridge and pellets had been recovered near the scene of occurrence. Though it is true that there were litigations between P. Ws. 2 and 3 on the one hand and the appellant on the other, the facts speak more eloquently here than any witness could speak. In any case there is no reason why any of the witnesses should leave out the real assailants and falsely implicate an innocent person. One could at least understand ones attempt to implicate his enemies in addition to the real culprit. But that is not the case here. The evidence of the Ballistic Expert establishes beyond doubt that the cartridge which caused Hazuri Singhs death was fired from the appellants gun5. Some criticism was made about the recovery of the gun and the cartridge and the evidence of the ballistic expert which was wholly without substance and which we do not feel called upon to refer. The appellants claim that he had deposited his gun with the arms dealer even on the 21st was clearly disproved by the evidence of the dealer as well as his records. The appellant seems to have gone and deposited the gun with the arms dealer after having committed the crime. He says that he deposited the gun because he came to know that ther had made a report for withdrawing the licence for his gun, but does not explain how he came to know abouts report. The learned advocate for the appellant tried to build up an impossible story that ther himself had fired a cartridge from the appellants gun after he had recovered it from the arms dealer. There is no reason why ar should have done so6. The learned advocate for the appellant also took us through the medical evidence.We see nothing in it to support the appellants case in any way. We are satisfied that the offence committed by the appellant has been amply established. There are no externating circumstances and the sentence of death passed on the appellant by the learned Sessions Judge and confirmed by the learned Judge of the High Court is the appropriate one in the circumstances of this case.
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The State of Madras & Others Vs. D. Namasivaya Mudaliar & Others
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call for comment in this case. But any principle for determination of compensation denying to the owner all increments in value of land between a fixed date and the date of issue of the notification under S. 4(1), prima facic, be regarded as denying to him the true equivalent of the land which is expropriated and it is for the State to show that fixation of compensation on the market value on an anterior date does not amount to a violation of the constitutional guarantee. No materials have been placed by the State before this Court which would support any such case.6. It is true that the Province of Madras had issued a "Press-Note" in 1948 announcing that the Government proposed to undertake legislation reserving the power to compel any person who had purchased land in the lignite bearing areas to sell such land to them at the rate at which it was purchased. The only intimation given thereby to the owners of lands was that the Government may undertake legislation for the purpose of purchasing land at the price at which speculators in land may have purchased them. There is no evidence that any scheme for acquisition of land for mining of lignite was prepared in 1947, by the Government of Madras. The mining operations in 1947 must, in the very nature of things, have been exploratory. The statement of objects and reasons for the Act clearly discloses that initially mining operations were started by the Government on a small area. Assuming that in appropriate cases, fixation of a date anterior to the publication of the notification under S. 4(1) for ascertainment of market value of the land to be acquired, may not always be regarded as a violation of the constitutional guarantee, in the absence of evidence that compensation assessed on the basis of market value on such anterior date, awards to the expropriated owner a just monetary value of his property at the date on which his interest is extinguished, the provisions of the Act arbitrarily fixing compensation based on the market value at a date many years before the notification under S. 4 (1) was issued, cannot be regarded as valid. It is a matter of common knowledge that since the termination of hostilities in the last World War there has been an upward tendency in land values resulting in appreciation in some areas many times the original value of lands. No attempt has been made by the State to prove that appreciation in the market value of lands in the area since April, 1947 was solely attributable to a scheme of land acquisition of lignite bearing lands. To deny to the owner of the land compensation at rates which justly indemnify him for his loss by awarding him compensation at rates prevailing ten years before the date on which the notification under S.4(1) was issued amounts in the circumstances to a flagrant infringement of the fundamental right of the owner, of the land under Art. 31(2) as it stood when the Act was enacted.7. The validity of the provisions relating to fixation of compensation had to be adjudged in the light of the extent of the constitutional protection guaranteed at the date when the Act was brought into operation, and any restriction of the constitutional protection by subsequent amendment of Art. 31(2) which has not been given retrospective effect, must be entirely ignored.8. The provision which denies to the owner of land compensation for non-agricultural improvements made by him since April 28, 1947, also infringes the protection of Art. 31(2). Under S. 3(a) of the Land Acquisition Act land is defined as including benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth, and when under S.4 (1) land is notified for acquisition, the acquisition is of the entirety of the interest of the owner in the land including under ground rights if any crops, trees and superstructures. By the Madras Act the owner is deprived of the value of all non-agricultural improvements including the value of non-agricultural buildings, erected on the land after April 28, 1947. It is not clear whether the non-agricultural buildings constructed after the specified date are forfeited to the State on acquisition, or the owner is entitled to remove them. In either case the owner is deprived of just value of his land including the superstructure, of which he is expropriated. Denial to the owner of the land of the value of the structures constructed up by him (even of those put up after April 28, 1947, with the knowledge that the Government may undertake legislation for the purpose of compulsory acquisition of the land) would still be denying to him just compensation for the loss suffered by him on account of compulsory acquisition of his holding and would amount to infringement of Art. 31(2) of the Constitution.9. We are therefore of the view that the provisions which require the Land Acquisition Officer and the Court to assess compensation of the land compulsorily acquired only on the market value of the land on April 28, 1947, together with the value of agricultural improvements on the land commenced, made or effected after that date, and before the date of the publication of the notification under S. 4(1), without taking into consideration the value of non-agricultural improvements made after that date, must be regarded as invalid.10. We are not called upon to express any opinion on the question whether the power reserved under S.17 of the Land Acquisition Act as amended by S. 2 of Madras Act XI of l953 to take the possession of lands under the emergency clause for the purpose of working lignite mines in the areas to which the of Madras Lignite (Acquisition of Land) Act, 1953, extends is invalid. No argument has been advanced by either side before us on this question. Nor was the High Court called upon to consider the validity of that provision.
|
0[ds]That principle must apply in adjudging the validity, of Madras Act XI of 1953. It may be assumed that April 28, 1947, was the date on which lignite deposits were discovered in the areas to which the Act is extended. But there is no true relation between the acquisition of the lands in these cases and fixation of compensation based on their value on the market rate prevailing on April 28, 1947. Fixation of compensation for compulsory acquisition of lands notified many years after the date, on the market value prevailing on the date on which lignite was discovered is wholly arbitrary and inconsistent with the letter and spirit of Art. 31 (2) as it stood before it was amended by the Constitution (Fourth Amendment) Act, 1956. If the owner is by a constitutional guarantee protected against expropriation of his property otherwise than for a just monetary equivalent, it would be impossible to hold that a law which authorises acquisition of land not for its true value, but for value frozen on some date anterior to the acquisition, on the assumption that all appreciation in its value since that date is attributable to purposes for which the State may use the land at some future date, must be regarded as infringing the fundamentalour view this observation cannot assist the State of Madras in saving the provisions of Madras Act XI of 1933 from the vice of infringing the constitutional guarantee under Art. 31(2) of the Constitution. The right which is guaranteed is undoubtedly the right to just indemnification for loss, and appreciation in the market value of the land because of the proposed acquisition may in assessing compensation be ignored. Even the Land Acquisition Act provides for assessment of compensation on the basis of market value of the land not on the date on which interest of the owner of the land is extinguished under S. 16, but on the basis of market value prevailing on the date on which the notification under S. 4(1) is issued. Whether this rule in all cases irrespective of subsequent development ensures just indemnification of expropriated owner so as to be immune from attack, does call for comment in this case. But any principle for determination of compensation denying to the owner all increments in value of land between a fixed date and the date of issue of the notification under S. 4(1), prima facic, be regarded as denying to him the true equivalent of the land which is expropriated and it is for the State to show that fixation of compensation on the market value on an anterior date does not amount to a violation of the constitutional guarantee. No materials have been placed by the State before this Court which would support any such case.6. It is true that the Province of Madras had issued a "Press-Note" in 1948 announcing that the Government proposed to undertake legislation reserving the power to compel any person who had purchased land in the lignite bearing areas to sell such land to them at the rate at which it was purchased. The only intimation given thereby to the owners of lands was that the Government may undertake legislation for the purpose of purchasing land at the price at which speculators in land may have purchased them. There is no evidence that any scheme for acquisition of land for mining of lignite was prepared in 1947, by the Government of Madras. The mining operations in 1947 must, in the very nature of things, have been exploratory. The statement of objects and reasons for the Act clearly discloses that initially mining operations were started by the Government on a small area. Assuming that in appropriate cases, fixation of a date anterior to the publication of the notification under S. 4(1) for ascertainment of market value of the land to be acquired, may not always be regarded as a violation of the constitutional guarantee, in the absence of evidence that compensation assessed on the basis of market value on such anterior date, awards to the expropriated owner a just monetary value of his property at the date on which his interest is extinguished, the provisions of the Act arbitrarily fixing compensation based on the market value at a date many years before the notification under S. 4 (1) was issued, cannot be regarded as valid. It is a matter of common knowledge that since the termination of hostilities in the last World War there has been an upward tendency in land values resulting in appreciation in some areas many times the original value of lands. No attempt has been made by the State to prove that appreciation in the market value of lands in the area since April, 1947 was solely attributable to a scheme of land acquisition of lignite bearing lands. To deny to the owner of the land compensation at rates which justly indemnify him for his loss by awarding him compensation at rates prevailing ten years before the date on which the notification under S.4(1) was issued amounts in the circumstances to a flagrant infringement of the fundamental right of the owner, of the land under Art. 31(2) as it stood when the Act was enacted.The provision which denies to the owner of land compensation for non-agricultural improvements made by him since April 28, 1947, also infringes the protection of Art. 31(2). Under S. 3(a) of the Land Acquisition Act land is defined as including benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth, and when under S.4 (1) land is notified for acquisition, the acquisition is of the entirety of the interest of the owner in the land including under ground rights if any crops, trees and superstructures. By the Madras Act the owner is deprived of the value of all non-agricultural improvements including the value of non-agricultural buildings, erected on the land after April 28, 1947. It is not clear whether the non-agricultural buildings constructed after the specified date are forfeited to the State on acquisition, or the owner is entitled to remove them. In either case the owner is deprived of just value of his land including the superstructure, of which he is expropriated. Denial to the owner of the land of the value of the structures constructed up by him (even of those put up after April 28, 1947, with the knowledge that the Government may undertake legislation for the purpose of compulsory acquisition of the land) would still be denying to him just compensation for the loss suffered by him on account of compulsory acquisition of his holding and would amount to infringement of Art. 31(2) of the Constitution.9. We are therefore of the view that the provisions which require the Land Acquisition Officer and the Court to assess compensation of the land compulsorily acquired only on the market value of the land on April 28, 1947, together with the value of agricultural improvements on the land commenced, made or effected after that date, and before the date of the publication of the notification under S. 4(1), without taking into consideration the value of non-agricultural improvements made after that date, must be regarded as invalid.10. We are not called upon to express any opinion on the question whether the power reserved under S.17 of the Land Acquisition Act as amended by S. 2 of Madras Act XI of l953 to take the possession of lands under the emergency clause for the purpose of working lignite mines in the areas to which the of Madras Lignite (Acquisition of Land) Act, 1953, extends is invalid. No argument has been advanced by either side before us on this question. Nor was the High Court called upon to consider the validity of that provision.
| 0 | 3,677 | 1,430 |
### 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:
call for comment in this case. But any principle for determination of compensation denying to the owner all increments in value of land between a fixed date and the date of issue of the notification under S. 4(1), prima facic, be regarded as denying to him the true equivalent of the land which is expropriated and it is for the State to show that fixation of compensation on the market value on an anterior date does not amount to a violation of the constitutional guarantee. No materials have been placed by the State before this Court which would support any such case.6. It is true that the Province of Madras had issued a "Press-Note" in 1948 announcing that the Government proposed to undertake legislation reserving the power to compel any person who had purchased land in the lignite bearing areas to sell such land to them at the rate at which it was purchased. The only intimation given thereby to the owners of lands was that the Government may undertake legislation for the purpose of purchasing land at the price at which speculators in land may have purchased them. There is no evidence that any scheme for acquisition of land for mining of lignite was prepared in 1947, by the Government of Madras. The mining operations in 1947 must, in the very nature of things, have been exploratory. The statement of objects and reasons for the Act clearly discloses that initially mining operations were started by the Government on a small area. Assuming that in appropriate cases, fixation of a date anterior to the publication of the notification under S. 4(1) for ascertainment of market value of the land to be acquired, may not always be regarded as a violation of the constitutional guarantee, in the absence of evidence that compensation assessed on the basis of market value on such anterior date, awards to the expropriated owner a just monetary value of his property at the date on which his interest is extinguished, the provisions of the Act arbitrarily fixing compensation based on the market value at a date many years before the notification under S. 4 (1) was issued, cannot be regarded as valid. It is a matter of common knowledge that since the termination of hostilities in the last World War there has been an upward tendency in land values resulting in appreciation in some areas many times the original value of lands. No attempt has been made by the State to prove that appreciation in the market value of lands in the area since April, 1947 was solely attributable to a scheme of land acquisition of lignite bearing lands. To deny to the owner of the land compensation at rates which justly indemnify him for his loss by awarding him compensation at rates prevailing ten years before the date on which the notification under S.4(1) was issued amounts in the circumstances to a flagrant infringement of the fundamental right of the owner, of the land under Art. 31(2) as it stood when the Act was enacted.7. The validity of the provisions relating to fixation of compensation had to be adjudged in the light of the extent of the constitutional protection guaranteed at the date when the Act was brought into operation, and any restriction of the constitutional protection by subsequent amendment of Art. 31(2) which has not been given retrospective effect, must be entirely ignored.8. The provision which denies to the owner of land compensation for non-agricultural improvements made by him since April 28, 1947, also infringes the protection of Art. 31(2). Under S. 3(a) of the Land Acquisition Act land is defined as including benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth, and when under S.4 (1) land is notified for acquisition, the acquisition is of the entirety of the interest of the owner in the land including under ground rights if any crops, trees and superstructures. By the Madras Act the owner is deprived of the value of all non-agricultural improvements including the value of non-agricultural buildings, erected on the land after April 28, 1947. It is not clear whether the non-agricultural buildings constructed after the specified date are forfeited to the State on acquisition, or the owner is entitled to remove them. In either case the owner is deprived of just value of his land including the superstructure, of which he is expropriated. Denial to the owner of the land of the value of the structures constructed up by him (even of those put up after April 28, 1947, with the knowledge that the Government may undertake legislation for the purpose of compulsory acquisition of the land) would still be denying to him just compensation for the loss suffered by him on account of compulsory acquisition of his holding and would amount to infringement of Art. 31(2) of the Constitution.9. We are therefore of the view that the provisions which require the Land Acquisition Officer and the Court to assess compensation of the land compulsorily acquired only on the market value of the land on April 28, 1947, together with the value of agricultural improvements on the land commenced, made or effected after that date, and before the date of the publication of the notification under S. 4(1), without taking into consideration the value of non-agricultural improvements made after that date, must be regarded as invalid.10. We are not called upon to express any opinion on the question whether the power reserved under S.17 of the Land Acquisition Act as amended by S. 2 of Madras Act XI of l953 to take the possession of lands under the emergency clause for the purpose of working lignite mines in the areas to which the of Madras Lignite (Acquisition of Land) Act, 1953, extends is invalid. No argument has been advanced by either side before us on this question. Nor was the High Court called upon to consider the validity of that provision.
### Response:
0
### Explanation:
the date on which interest of the owner of the land is extinguished under S. 16, but on the basis of market value prevailing on the date on which the notification under S. 4(1) is issued. Whether this rule in all cases irrespective of subsequent development ensures just indemnification of expropriated owner so as to be immune from attack, does call for comment in this case. But any principle for determination of compensation denying to the owner all increments in value of land between a fixed date and the date of issue of the notification under S. 4(1), prima facic, be regarded as denying to him the true equivalent of the land which is expropriated and it is for the State to show that fixation of compensation on the market value on an anterior date does not amount to a violation of the constitutional guarantee. No materials have been placed by the State before this Court which would support any such case.6. It is true that the Province of Madras had issued a "Press-Note" in 1948 announcing that the Government proposed to undertake legislation reserving the power to compel any person who had purchased land in the lignite bearing areas to sell such land to them at the rate at which it was purchased. The only intimation given thereby to the owners of lands was that the Government may undertake legislation for the purpose of purchasing land at the price at which speculators in land may have purchased them. There is no evidence that any scheme for acquisition of land for mining of lignite was prepared in 1947, by the Government of Madras. The mining operations in 1947 must, in the very nature of things, have been exploratory. The statement of objects and reasons for the Act clearly discloses that initially mining operations were started by the Government on a small area. Assuming that in appropriate cases, fixation of a date anterior to the publication of the notification under S. 4(1) for ascertainment of market value of the land to be acquired, may not always be regarded as a violation of the constitutional guarantee, in the absence of evidence that compensation assessed on the basis of market value on such anterior date, awards to the expropriated owner a just monetary value of his property at the date on which his interest is extinguished, the provisions of the Act arbitrarily fixing compensation based on the market value at a date many years before the notification under S. 4 (1) was issued, cannot be regarded as valid. It is a matter of common knowledge that since the termination of hostilities in the last World War there has been an upward tendency in land values resulting in appreciation in some areas many times the original value of lands. No attempt has been made by the State to prove that appreciation in the market value of lands in the area since April, 1947 was solely attributable to a scheme of land acquisition of lignite bearing lands. To deny to the owner of the land compensation at rates which justly indemnify him for his loss by awarding him compensation at rates prevailing ten years before the date on which the notification under S.4(1) was issued amounts in the circumstances to a flagrant infringement of the fundamental right of the owner, of the land under Art. 31(2) as it stood when the Act was enacted.The provision which denies to the owner of land compensation for non-agricultural improvements made by him since April 28, 1947, also infringes the protection of Art. 31(2). Under S. 3(a) of the Land Acquisition Act land is defined as including benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth, and when under S.4 (1) land is notified for acquisition, the acquisition is of the entirety of the interest of the owner in the land including under ground rights if any crops, trees and superstructures. By the Madras Act the owner is deprived of the value of all non-agricultural improvements including the value of non-agricultural buildings, erected on the land after April 28, 1947. It is not clear whether the non-agricultural buildings constructed after the specified date are forfeited to the State on acquisition, or the owner is entitled to remove them. In either case the owner is deprived of just value of his land including the superstructure, of which he is expropriated. Denial to the owner of the land of the value of the structures constructed up by him (even of those put up after April 28, 1947, with the knowledge that the Government may undertake legislation for the purpose of compulsory acquisition of the land) would still be denying to him just compensation for the loss suffered by him on account of compulsory acquisition of his holding and would amount to infringement of Art. 31(2) of the Constitution.9. We are therefore of the view that the provisions which require the Land Acquisition Officer and the Court to assess compensation of the land compulsorily acquired only on the market value of the land on April 28, 1947, together with the value of agricultural improvements on the land commenced, made or effected after that date, and before the date of the publication of the notification under S. 4(1), without taking into consideration the value of non-agricultural improvements made after that date, must be regarded as invalid.10. We are not called upon to express any opinion on the question whether the power reserved under S.17 of the Land Acquisition Act as amended by S. 2 of Madras Act XI of l953 to take the possession of lands under the emergency clause for the purpose of working lignite mines in the areas to which the of Madras Lignite (Acquisition of Land) Act, 1953, extends is invalid. No argument has been advanced by either side before us on this question. Nor was the High Court called upon to consider the validity of that provision.
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Ram Sarup Vs. State of Haryana and Others
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CHANDRACHUD, C.J. 1. Section 33 of the Punjab Panchayat Samitis and Zilla Parishads Act; 1961 ("The Act") provided in so far as relevant, that subject to rules made by the Government, a Panchayat Samiti may employ such servants as it may consider necessary for the efficient performance of the duties imposed upon it by the Act, rules or bye-laws made thereunder or by. any other law for the time being in force. In pursuance of this power, the appellant was appointed as a clerk on June 1, 1963 by the Panchayat Samiti, Loharu, which is respondent 3 in this appeal. He was confirmed in that post in course of time. On January 21, 1974 he was promoted as a Head Clerk on an ad hoc basis. On March 14, 1975 a resolution was passed by respondent 3 regularising the post of Head Clerk. On April 1, 1975, the appellant was appointed as a Head Clerk.2. The Punjab Panchayat Samitis, Zilla Parishads (Haryana Amendment) Act, 1973 introduced extensive amendments in the Act of 1961. Section 13 of the Amending Act deleted section 33 of the Act. A plain consequence of this deletion was that the Panchayat Samitis were divested of their power to make appointments to the Panchayats. The Amending Act received the assent of the Governor on April 25, 1973 and was published in the Haryana Gazette on June 13, 1973.3. Sections 35(1) of the Act empowers the State Government to place at the disposal of a Panchayat Samiti such of its servants as are required for the implementation of the schemes connected therewith and for such other duties and functions as may be assigned to them by the Panchayat Samiti from time to time. Section 35(3) which dealt with the conditions of service of the Government servants allotted to the Panchayat Samitis, was amended by section 14 of the Amending Act of 1973. Sub-section (4) of section 14 of the Amending Act provides that persons employed by a Panchayat Samiti before April 1, 1973 and who were in service at the commencement of the Amending Act s hall continue to service on the same terms and conditions on which they were employed by the Panchayat Samiti", until they are absorbed in the Government service or retire in such manner as may be prescribed.Acting in pursuance of the provision of section 14(4) of the Amending Act, the Government of Haryana notified the absorption of the appellant as a clerk though, as stated earlier he was working as a head Clerk in the Loharu Panchayat Samiti. Being aggrieved by his absorption on a lower post, he filed a writ petition in the High Court of Punjab and Haryana, asking that he should be absorbed as a Head Clerk. The writ petition having been dismissed by the High Court, the appellant has filed this appeal by special leave. 4. The appellant was appointed as a clerk by the Loharu Panchayat Samiti in-1963, long before the Amending Act came into force on June 13, 1973. He was, therefore, entitled to be absorbed in Government service as a clerk in any event. But, as a result of the deletion of section 33 of the Act by the Amending Act of 1973, the Panchayat Samiti lost its power to make appointments to the Panchayat. The fact that the appellant was promoted as a Head Clerk on an ad hoc basis in January 1974, or the further fact that he was appointed as a Head Clerk on April 1, 1975, cannot improve his position for the simple reason that these appointments were made after June 13, 1973, being the date on which the Panchayat Samiti lost its power to make appointments to. the Panchayat. 5. It is urged by Shri Jain who appears on behalf of the appellant that by reason of section 14(4) of the Amending Act, the appellant was entitled to continue in the service of the Panchayat on the same terms and conditions on which he was employed by the Panchayat Samiti until he was absorbed in Government service. Since the appellant, according to the terms and conditions of his service with the Panchayat, was entitled to be considered for promotion to the post of a Head Clerk, his appointment as a Head Clerk prior to his absorption in Government service had to be recognised and protected, despite the fact that such appointment was made after June 13, 1973 when t he Amending Act came into force. There is no substance in this contention. Even assuming for the purposes of argument that the right to be considered for promotion is a term and condition of service, what is relevant for our purpose is not whether the appellant was entitled to be considered for promotion but, whether the Panchayat Samiti had the right to appoint him to the post of Head Clerk on the date on which it purported to do so. Clearly, it had fortified that right on June 13, 1973. It could not, therefore, have appointed the appellant as a Head Clerk, as it purported to do, in January 1974 on an ad hoc basis or in April 1975 on a regular basis. The appointment of the appellant to the post of a Head Clerk being without the authority of law, the Government was not bound to absorb him in the post of a Head Clerk. He was appointed lawfully to the post of a Clerk and that is the post in which the Government has absorbed him.
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0[ds]It is urged by Shri Jain who appears on behalf of the appellant that by reason of section 14(4) of the Amending Act, the appellant was entitled to continue in the service of the Panchayat on the same terms and conditions on which he was employed by the Panchayat Samiti until he was absorbed in Government service. Since the appellant, according to the terms and conditions of his service with the Panchayat, was entitled to be considered for promotion to the post of a Head Clerk, his appointment as a Head Clerk prior to his absorption in Government service had to be recognised and protected, despite the fact that such appointment was made after June 13, 1973 when t he Amending Act came into force. There is no substance in this contention. Even assuming for the purposes of argument that the right to be considered for promotion is a term and condition of service, what is relevant for our purpose is not whether the appellant was entitled to be considered for promotion but,whether the Panchayat Samiti had the right to appoint him to the post of Head Clerk on the date on which it purported to do so.Clearly, it had fortified that right on June 13, 1973. It could not, therefore, have appointed the appellant as a Head Clerk, as it purported to do, in January 1974 on an ad hoc basis or in April 1975 on a regular basis. The appointment of the appellant to the post of a Head Clerk being without the authority of law, the Government was not bound to absorb him in the post of a Head Clerk. He was appointed lawfully to the post of a Clerk and that is the post in which the Government has absorbed him.
| 0 | 1,022 | 325 |
### 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:
CHANDRACHUD, C.J. 1. Section 33 of the Punjab Panchayat Samitis and Zilla Parishads Act; 1961 ("The Act") provided in so far as relevant, that subject to rules made by the Government, a Panchayat Samiti may employ such servants as it may consider necessary for the efficient performance of the duties imposed upon it by the Act, rules or bye-laws made thereunder or by. any other law for the time being in force. In pursuance of this power, the appellant was appointed as a clerk on June 1, 1963 by the Panchayat Samiti, Loharu, which is respondent 3 in this appeal. He was confirmed in that post in course of time. On January 21, 1974 he was promoted as a Head Clerk on an ad hoc basis. On March 14, 1975 a resolution was passed by respondent 3 regularising the post of Head Clerk. On April 1, 1975, the appellant was appointed as a Head Clerk.2. The Punjab Panchayat Samitis, Zilla Parishads (Haryana Amendment) Act, 1973 introduced extensive amendments in the Act of 1961. Section 13 of the Amending Act deleted section 33 of the Act. A plain consequence of this deletion was that the Panchayat Samitis were divested of their power to make appointments to the Panchayats. The Amending Act received the assent of the Governor on April 25, 1973 and was published in the Haryana Gazette on June 13, 1973.3. Sections 35(1) of the Act empowers the State Government to place at the disposal of a Panchayat Samiti such of its servants as are required for the implementation of the schemes connected therewith and for such other duties and functions as may be assigned to them by the Panchayat Samiti from time to time. Section 35(3) which dealt with the conditions of service of the Government servants allotted to the Panchayat Samitis, was amended by section 14 of the Amending Act of 1973. Sub-section (4) of section 14 of the Amending Act provides that persons employed by a Panchayat Samiti before April 1, 1973 and who were in service at the commencement of the Amending Act s hall continue to service on the same terms and conditions on which they were employed by the Panchayat Samiti", until they are absorbed in the Government service or retire in such manner as may be prescribed.Acting in pursuance of the provision of section 14(4) of the Amending Act, the Government of Haryana notified the absorption of the appellant as a clerk though, as stated earlier he was working as a head Clerk in the Loharu Panchayat Samiti. Being aggrieved by his absorption on a lower post, he filed a writ petition in the High Court of Punjab and Haryana, asking that he should be absorbed as a Head Clerk. The writ petition having been dismissed by the High Court, the appellant has filed this appeal by special leave. 4. The appellant was appointed as a clerk by the Loharu Panchayat Samiti in-1963, long before the Amending Act came into force on June 13, 1973. He was, therefore, entitled to be absorbed in Government service as a clerk in any event. But, as a result of the deletion of section 33 of the Act by the Amending Act of 1973, the Panchayat Samiti lost its power to make appointments to the Panchayat. The fact that the appellant was promoted as a Head Clerk on an ad hoc basis in January 1974, or the further fact that he was appointed as a Head Clerk on April 1, 1975, cannot improve his position for the simple reason that these appointments were made after June 13, 1973, being the date on which the Panchayat Samiti lost its power to make appointments to. the Panchayat. 5. It is urged by Shri Jain who appears on behalf of the appellant that by reason of section 14(4) of the Amending Act, the appellant was entitled to continue in the service of the Panchayat on the same terms and conditions on which he was employed by the Panchayat Samiti until he was absorbed in Government service. Since the appellant, according to the terms and conditions of his service with the Panchayat, was entitled to be considered for promotion to the post of a Head Clerk, his appointment as a Head Clerk prior to his absorption in Government service had to be recognised and protected, despite the fact that such appointment was made after June 13, 1973 when t he Amending Act came into force. There is no substance in this contention. Even assuming for the purposes of argument that the right to be considered for promotion is a term and condition of service, what is relevant for our purpose is not whether the appellant was entitled to be considered for promotion but, whether the Panchayat Samiti had the right to appoint him to the post of Head Clerk on the date on which it purported to do so. Clearly, it had fortified that right on June 13, 1973. It could not, therefore, have appointed the appellant as a Head Clerk, as it purported to do, in January 1974 on an ad hoc basis or in April 1975 on a regular basis. The appointment of the appellant to the post of a Head Clerk being without the authority of law, the Government was not bound to absorb him in the post of a Head Clerk. He was appointed lawfully to the post of a Clerk and that is the post in which the Government has absorbed him.
### Response:
0
### Explanation:
It is urged by Shri Jain who appears on behalf of the appellant that by reason of section 14(4) of the Amending Act, the appellant was entitled to continue in the service of the Panchayat on the same terms and conditions on which he was employed by the Panchayat Samiti until he was absorbed in Government service. Since the appellant, according to the terms and conditions of his service with the Panchayat, was entitled to be considered for promotion to the post of a Head Clerk, his appointment as a Head Clerk prior to his absorption in Government service had to be recognised and protected, despite the fact that such appointment was made after June 13, 1973 when t he Amending Act came into force. There is no substance in this contention. Even assuming for the purposes of argument that the right to be considered for promotion is a term and condition of service, what is relevant for our purpose is not whether the appellant was entitled to be considered for promotion but,whether the Panchayat Samiti had the right to appoint him to the post of Head Clerk on the date on which it purported to do so.Clearly, it had fortified that right on June 13, 1973. It could not, therefore, have appointed the appellant as a Head Clerk, as it purported to do, in January 1974 on an ad hoc basis or in April 1975 on a regular basis. The appointment of the appellant to the post of a Head Clerk being without the authority of law, the Government was not bound to absorb him in the post of a Head Clerk. He was appointed lawfully to the post of a Clerk and that is the post in which the Government has absorbed him.
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STATE OF MADHYA PRADESH Vs. SHABANA BI
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R. Banumathi, J. 1. Being aggrieved by the reversal of the conviction of the respondent-accused for the offence under section 302 IPC, the State of Madhya Pradesh has preferred this appeal. 2. The respondent-accused and the deceased Farida were neighbours. On the date of occurrence dated 19.04.2004 the respondent-accused is set to have poured kerosene on deceased Farida and set her ablaze. The respondent was tried for the offence under Section 302 IPC. 3. Based on the dying declaration (Ex.P-25) of the deceased recorded by the Executive Magistrate, Tehsildar (PW-13), the trial Court convicted the respondent under Section 302 IPC and sentenced her to undergo life imprisonment. In appeal, the High Court pointed out that there is inconsistency between the first dying declaration recorded by Dr. Rakesh Chouksey (PW-9) to whom deceased stated that she has been burnt by her neighbour Sabana (respondent) and Noorafza who were mother and daughter, whereas before the Executive Magistrate, Tehsildar (PW-13) who has recorded the dying declaration of the deceased on 19.04.2004 to whom the deceased stated that she was set on fire by Sabana-respondent. The High Court has held that there are inconsistencies between the statement of deceased to Dr. Rakesh Chouksey (PW-9) and dying declaration (Ex.P-25) recorded by the Tehsildar (PW-13) and that benefit of doubt to be given to the respondent-accused. When there are two reasonable views and the High Court has adopted one such view which is a plausible one, we do not find any substantial ground warranting interference with the order of the acquittal.
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0[ds]When there are two reasonable views and the High Court has adopted one such view which is a plausible one, we do not find any substantial ground warranting interference with the order of the acquittal.
| 0 | 291 | 41 |
### 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:
R. Banumathi, J. 1. Being aggrieved by the reversal of the conviction of the respondent-accused for the offence under section 302 IPC, the State of Madhya Pradesh has preferred this appeal. 2. The respondent-accused and the deceased Farida were neighbours. On the date of occurrence dated 19.04.2004 the respondent-accused is set to have poured kerosene on deceased Farida and set her ablaze. The respondent was tried for the offence under Section 302 IPC. 3. Based on the dying declaration (Ex.P-25) of the deceased recorded by the Executive Magistrate, Tehsildar (PW-13), the trial Court convicted the respondent under Section 302 IPC and sentenced her to undergo life imprisonment. In appeal, the High Court pointed out that there is inconsistency between the first dying declaration recorded by Dr. Rakesh Chouksey (PW-9) to whom deceased stated that she has been burnt by her neighbour Sabana (respondent) and Noorafza who were mother and daughter, whereas before the Executive Magistrate, Tehsildar (PW-13) who has recorded the dying declaration of the deceased on 19.04.2004 to whom the deceased stated that she was set on fire by Sabana-respondent. The High Court has held that there are inconsistencies between the statement of deceased to Dr. Rakesh Chouksey (PW-9) and dying declaration (Ex.P-25) recorded by the Tehsildar (PW-13) and that benefit of doubt to be given to the respondent-accused. When there are two reasonable views and the High Court has adopted one such view which is a plausible one, we do not find any substantial ground warranting interference with the order of the acquittal.
### Response:
0
### Explanation:
When there are two reasonable views and the High Court has adopted one such view which is a plausible one, we do not find any substantial ground warranting interference with the order of the acquittal.
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Union of India Vs. Playworld Electronics Private Limited
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purpose of levy of excise duty, include the value of the trade marks under which the goods were sold in the market and that the value of such trade marks should be added to the wholesale price for which the goods were sold by the respondent to Nestle s. Dismissing the appeal, it was held that the value of Nestle s trade marks could not be added to the wholesale price charged by the respondent to Nestle s for the purpose of computing the value of the goods manufactured by the respondent in the assessment to excise duty. In that case, it was held that what were sold and supplied by the respondent were goods manufactured by it with the trade marks affixed to them and it was the wholesale cash price of goods that must determine the value for the purpose of assessment of excise duty. It was immaterial that the trade marks belonged to Nestle s. What was material was that Nestle s had authorised the respondent to affix the trade marks on the goods manufactured by it and it was the goods with the trade marks affixed to them that were sold by the respondent to Nestle s. There could, therefore, be no doubt, it was held, that the wholesale price at which the goods with the trade marks affixed to them were sold by the respondent to Nestle s as stipulated under the agreements would be the value of the goods for the purpose of excise duty. That was the price at which the respondent sold the goods to Nestle s in the course of wholesale trade. 9. Similarly in the instant case, it appears that the brand name Bush was affixed to the goods produced by the respondent. In M/s. Sidhosons and Others v. Union of India and Others -1986 (26) E.L.T. 881 (SC) = 19871 SCC 25, it was held that the excise duty was payable on the market value fetched by the goods, in the wholesale market at the factory gate manufactured by the manufacturers, i.e., the price charged by the manufacturers to the buyer under the agreement. It could not be assessed on the basis of the market value obtained by the buyers who also add to the value of the manufactured goods the value of their own property in the goodwill of the brand name.10. In view of the facts that have emerged in this case, the High Court came to the conclusion that the market value of the goods of the respondent herein was the price charged from M/s. Bush India Ltd. and not the market value at which price M/s. Bush India Ltd. sold to its whole-sellers for the purpose of payment of excise duty. The High Court, therefore, quashed the Show Cause Notice and the Demand Notice. 11. Shri A. Subba Rao on behalf of the Revenue tried to contend before us that the facts of this case revealed that it was a device to under-charge. The respondent herein was brought in to divide the sale price of M/s. Bush India Ltd. to be the basis of the assessable value. It is true that the facts of this case do warrant a great deal of suspicion. But it is not possible to hold otherwise than that has been held by the High Court in this case. It is true, as Shri Rao drew our attention, that even though the Corporation might be a legal personality distinct from its members, the Court is entitled to lift the mask of corporate entity if the conception is used for tax evasion, or to circumvent tax obligation or to perpetrate a fraud. In this connection, reference may be made to the observations of this Court Juggi Lal Kamlapat v. Commissioner of Income-Tax, U.P. -1969 (1) SCR 988. In the background of the facts found we, however, need not get ourselves bogged with the controversy as to judicial approach to tax avoidance devices as was pointed out in McDowell and Co. Ltd. v. Commercial Tax Officer - 1985 (154) ITR 148 , where this Court tried to discourage colourable devices. It is true that tax planning may be legitimate provided it is within the framework of the law. Colourable devices cannot be part of tax planning and it is wrong to encourage or entertain the belief that it is honourable to avoid the payment of tax by dubious methods. It is the obligation of every citizen to pay the taxes honestly without resorting to subterfuges. It is also true that in order to create the atmosphere of tax compliance, taxes must be reasonably collected and when collected, should be utilized in proper expenditure and not wasted. [See the observations in Commissioner of Wealth Tax v. Arvind Narottam 1988 4 SCC 113 ]. It is not necessary, in the facts of this case to notice the change in the trend of judicial approach in England : [Sherdeley v. Sherdeley 1987 2 AER 54]. While it is true, as observed by Chinnappa Reddy, J. in Mcdowell and Co. Ltd., v. Commerical Tax Officer (supra) too much to expect the legislature to intervene and take care of every device and scheme to avoid taxation and it is up to the court sometimes to take stock to determine the nature of the new and sophisticated legal devices to avoid tax and to expose the devices for what they realy are and to refuse to give judicial benediction, it is necessary to remember as observed by Lord Reid in Greenberg v. IRC [1971 (47) TC 240 (HL)] that one must find out the true nature of the transaction. It is unsafe to make bad laws out of hard facts and one should avoid subverting the rule of law. Unfortunately, in the instant case, facts have not been found with such an approach by the lower authorities and the High Court had no alternative on the facts as found but to quash the Show Cause and the Demand Notices.
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0[ds]3. Unfortunately, in the instant case, apart from the facts recorded hereinbefore, there is no other fact.In Union of India v. Bombay Tyre International (supra), this Court had to examine this question. This Court examined the scheme of Section 4(1)(a) before the Amendment Act, 1973 and also the position after the amendment. It was contended in that case before this Court that the definition of the expression related person was arbitrary and it included within its ambit a distributor of the assessee. This Court however, held that in the definition of related person being a relative and a distributor could be legitimately read down and its validity upheld. The definition of related person should be so read, this court emphasised, that the words a relative and a distributor of the assessee should be understood to mean a distributor who was a relative of the assessee. The Explanation to Section 4(4)(c) provides that the expression relative has the same meaning as in the Companies Act, 1956. The definition of related person , as being a person who is so associated with the assessee that they have interest, directly or indirectly, in the business of each other and includes a holding company, a subsidiary company...... , shows a sufficiently restricted basis for employing the legal fiction. This Court reiterated that it is well-settled that in a suitable case the court could lift the corporate veil where the companies share the relationship of a holding company and a subsidiary company and also to pay regard to the economic realities behind the legal facade. The true position, it was explained by the aforesaid decision, under the said Act is - the price at which the excisable goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and place of removal as defined in sub-section (4)(b) of Section 4 of the Act is the basis for determination of excisable value provided, of course, the buyer is not a related person within the meaning of sub-section (4)(c) of Section 4 and the price is the sole consideration for the sale. This aspect was further examined by this Court in Union of India and Others v. Atic Industries Ltd. -1984 (17) E.L.T. 323 (S.C.); 1984 (3) SCR 930. This Court referred to the decision of Bombay Tyre International (supra) and also referred to the first part of the definition of related person in clause (c) of Section 4(4) which defines related person to mean a person who is so associated with the assessee that they have interest directly or indirectly in the business of each other . It was not enough, it was held, that the person alleged to be a related person had an interest, direct or indirect in the business of the assessee. To attract the applicability of the first part of the definition, the assessee and, the person alleged to be a related person must have interest direct or indirect in the business of each other. Each of them must have a direct or indirect interest in the business of the other. The quality and degree of interest which each has in the business of the other may be different; the interest of one in the business of the other may be direct while the interest of the latter in the business of the former may be indirect. That would not make any difference so long as each has got some interest, direct or indirect in the business of the other. In that case, this Court found that Atul Products Ltd. had interest in the business of M/s. Atic Industries Ltd. since it held 50% of the share capital of that assessee and had interest as shareholder in the business carried on by the assessee. But this Court was of the view that it could not be said that the assessee, a limited company, had any interest, direct or indirect in the business carried on by one of its shareholders, namely, Atul Products Ltd., even though the share-holding of such shareholder might be 50%. Secondly, it was noted that Atul Products Ltd. was a wholesale buyer of the dyes manufactured by the assessee but even then, since the transactions between them were as principal to principal, it was difficult to appreciate how the assessee could be said by virtue of that circumstances to have any interest, direct or indirect, in the business of Atul Products Ltd. The assessee, it was observed, was not concerned whether Atul Products sold or did not sell the dyes purchased by it from the assessee nor was it concerned whether Atul Products Ltd. sold such dyes at a profit or at a loss. In those circumstances, the first part of the definition of related persons in clause (c) of sub-section (4) of Section 4 of the Amended Act was, therefore, clearly not satisfied both in relation to Atul Products Ltd. as also in relation to Crescent Dyes and Chemicals Ltd., a subsidiary company of Atic Industries Ltd., and neither of them could be said to be a related person vis-a-vis the assessee within the meaning of the definition of that term in clause (c) of sub-section (4) of Section 4 of the amended Act. In those circumstances, the assessable value, it was held, of the dyes manufactured by the assessee could not be determined with reference to the selling price charged by Atul Products Ltd. and Crescent Dyes and Chemicals Ltd. to their purchasers but must be determined on the basis of the wholesale cash price charged by the assessee to Atul Products Ltd. and Crescent Dyes and Chemicals Ltd. In that case, the assessee at all material times sold the large bulk of dyes manufactured by it in wholesale to Atul Products and Imperial Chemical Industries (India) Pvt. Ltd. which subsequently came to be known as Crescent Dyes and Chemicals Ltd. at a uniform price applicable alike to both these wholesale buyers and these wholesale buyers sold these dyes to dealers and consumers at a higher price which inter alia included the expenses incurred by them as also their profit. It was noted that the transactions between the assessee on the one hand and Atul Products Ltd. and Crescent Dyes and Chemicals Ltd. on the other were as principal to principal and the wholesale price charged by the assessee to Atul Products Ltd. and Crescent Dyes and Chemicals was the sole consideration for the sale and no extra-commercial considerations entered in the determination of such price. For appreciating how the wholesale price could be the basis of the determination of the assessable value, a reference may be made to the decision of this Court in Union of India and Others v. Cibatul Limited [1985 (22) E.L.T. 302 (S.C.); 1985 Supp. 3 SCR 95]. In that case, the respondent, Cibatul Ltd. entered into two agreements with Ciba Geigy of India Ltd. for manufacturing resins by the seller. The joint manufacturing programme indicated that the resins were to be manufactured in accordance with the restrictions and specifications constituting the buyer s standard and supplied at prices to be agreed upon from time to time. The buyer was entitled to test a sample of each batch of the goods and after its approval the goods were to be released for sale to the buyer. The products were to bear certain trade-marks being the property of the foreign company - Ciba Geigy of Basle. Tripartite agreements were also executed between the buyer, the seller and the foreign company, recognising the buyer as the registered or licensed user of the trade-marks, authorising the seller to affix the trade-marks on the products manufactured as an agent for and on behalf of the buyer and not of his own account and the right of the buyer being reserved to revoke the authority given to the seller to affix the trade-marks. The respondent in that case filed declaration for the purposes of levy of excise under the said Act showing the wholesale prices of different classes of goods sold by it during the period May, 1972 to May, 1975. The declaration included the wholesale prices of the different resins manufactured under the two aforesaid agreements. The Assistant Collector of Customs revised those prices upwards on the basis that the wholesale price should be the price for which the buyer sold the product in the market. According to the Assistant Collector the buyer was the manufacturer of goods and not the seller. The Collector of Central Excise allowed the appeals of the respondent and accepted the plea that the wholesale price disclosed by the seller was the proper basis for determining the excise duty. The Appellate orders however, revised by the Central Government under sub-section (2) of Section 36 of the Act and the orders made by the Assistant Collector were restored. According to the Central Government the buyer was the person engaged in the production of the goods and the seller merely manufactured them on behalf of the buyer and that under the agreements the seller was required to affix the trade-marks of the buyer on the manufactured goods and that indicated that the goods belonged to the buyer. There is a ring of similarity between the facts of that case and the facts of the instant appeal before us. The orders of the Central Government were challenged under Article 226 of the Constitution. The High Court held that the goods were manufactured by the seller as its own goods, and therefore, the wholesale price charged by the seller must form the true basis for the levy of excise duty. On appeal, this Court held that the High Court was right in concluding that the wholesale price of the goods manufactured by the seller was the wholesale price at which it sold those goods to the buyer, and it was not the wholesale price at which the buyer sold those goods to others. The relevant provisions of the agreements and the other material on the record showed that the manufacturing programme was drawn up jointly by the buyer and the seller and not merely by the buyer, and that the buyer was obliged to purchase the manufactured product from the seller only if it conformed to the buyer s standard. For this purpose, the buyer was entitled to test a sample of each batch of the manufactured product and it was only on approval by him that the product was released for sale by the seller to the buyer. It was apparent that the seller could not be said to manufacture the goods in those facts, it was held, on behalf of the buyer. It was further found that it was clear from the record that the trade-marks of the buyer were to be affixed on those goods only which were found to conform to the specifications or standard stipulated by the buyer. All goods not approved by the buyer could not bear those trade-marks and were disposed of by the sellers without the advantage of those trademarks..10. In view of the facts that have emerged in this case, the High Court came to the conclusion that the market value of the goods of the respondent herein was the price charged from M/s. Bush India Ltd. and not the market value at which price M/s. Bush India Ltd. sold to its whole-sellers for the purpose of payment of excise duty. The High Court, therefore, quashed the Show Cause Notice and the Demandis true that the facts of this case do warrant a great deal of suspicion. But it is not possible to hold otherwise than that has been held by the High Court in this case.It is true, as Shri Rao drew our attention, that even though the Corporation might be a legal personality distinct from its members, the Court is entitled to lift the mask of corporate entity if the conception is used for tax evasion, or to circumvent tax obligation or to perpetrate a fraud. In this connection, reference may be made to the observations of this Court Juggi Lal Kamlapat v. Commissioner of69 (1) SCR 988. In the background of the facts found we, however, need not get ourselves bogged with the controversy as to judicial approach to tax avoidance devices as was pointed out in McDowell and Co. Ltd. v. Commercial Tax Officer1985 (154) ITR 148 , where this Court tried to discourage colourable devices. It is true that tax planning may be legitimate provided it is within the framework of the law. Colourable devices cannot be part of tax planning and it is wrong to encourage or entertain the belief that it is honourable to avoid the payment of tax by dubious methods. It is the obligation of every citizen to pay the taxes honestly without resorting to subterfuges. It is also true that in order to create the atmosphere of tax compliance, taxes must be reasonably collected and when collected, should be utilized in proper expenditure and not wasted. [See the observations in Commissioner of Wealth Tax v. Arvind Narottam 1988 4 SCC 113 ]. It is not necessary, in the facts of this case to notice the change in the trend of judicial approach in England : [Sherdeley v. Sherdeley 1987 2 AER 54]. While it is true, as observed by Chinnappa Reddy, J. in Mcdowell and Co. Ltd., v. Commerical Tax Officer (supra) too much to expect the legislature to intervene and take care of every device and scheme to avoid taxation and it is up to the court sometimes to take stock to determine the nature of the new and sophisticated legal devices to avoid tax and to expose the devices for what they realy are and to refuse to give judicial benediction, it is necessary to remember as observed by Lord Reid inGreenberg v. IRC [1971 (47) TC 240 (HL)]that one must find out the true nature of the transaction. It is unsafe to make bad laws out of hard facts and one should avoid subverting the rule of law. Unfortunately, in the instant case, facts have not been found with such an approach by the lower authorities and the High Court had no alternative on the facts as found but to quash the Show Cause and the Demand Notices.
| 0 | 4,822 | 2,617 |
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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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purpose of levy of excise duty, include the value of the trade marks under which the goods were sold in the market and that the value of such trade marks should be added to the wholesale price for which the goods were sold by the respondent to Nestle s. Dismissing the appeal, it was held that the value of Nestle s trade marks could not be added to the wholesale price charged by the respondent to Nestle s for the purpose of computing the value of the goods manufactured by the respondent in the assessment to excise duty. In that case, it was held that what were sold and supplied by the respondent were goods manufactured by it with the trade marks affixed to them and it was the wholesale cash price of goods that must determine the value for the purpose of assessment of excise duty. It was immaterial that the trade marks belonged to Nestle s. What was material was that Nestle s had authorised the respondent to affix the trade marks on the goods manufactured by it and it was the goods with the trade marks affixed to them that were sold by the respondent to Nestle s. There could, therefore, be no doubt, it was held, that the wholesale price at which the goods with the trade marks affixed to them were sold by the respondent to Nestle s as stipulated under the agreements would be the value of the goods for the purpose of excise duty. That was the price at which the respondent sold the goods to Nestle s in the course of wholesale trade. 9. Similarly in the instant case, it appears that the brand name Bush was affixed to the goods produced by the respondent. In M/s. Sidhosons and Others v. Union of India and Others -1986 (26) E.L.T. 881 (SC) = 19871 SCC 25, it was held that the excise duty was payable on the market value fetched by the goods, in the wholesale market at the factory gate manufactured by the manufacturers, i.e., the price charged by the manufacturers to the buyer under the agreement. It could not be assessed on the basis of the market value obtained by the buyers who also add to the value of the manufactured goods the value of their own property in the goodwill of the brand name.10. In view of the facts that have emerged in this case, the High Court came to the conclusion that the market value of the goods of the respondent herein was the price charged from M/s. Bush India Ltd. and not the market value at which price M/s. Bush India Ltd. sold to its whole-sellers for the purpose of payment of excise duty. The High Court, therefore, quashed the Show Cause Notice and the Demand Notice. 11. Shri A. Subba Rao on behalf of the Revenue tried to contend before us that the facts of this case revealed that it was a device to under-charge. The respondent herein was brought in to divide the sale price of M/s. Bush India Ltd. to be the basis of the assessable value. It is true that the facts of this case do warrant a great deal of suspicion. But it is not possible to hold otherwise than that has been held by the High Court in this case. It is true, as Shri Rao drew our attention, that even though the Corporation might be a legal personality distinct from its members, the Court is entitled to lift the mask of corporate entity if the conception is used for tax evasion, or to circumvent tax obligation or to perpetrate a fraud. In this connection, reference may be made to the observations of this Court Juggi Lal Kamlapat v. Commissioner of Income-Tax, U.P. -1969 (1) SCR 988. In the background of the facts found we, however, need not get ourselves bogged with the controversy as to judicial approach to tax avoidance devices as was pointed out in McDowell and Co. Ltd. v. Commercial Tax Officer - 1985 (154) ITR 148 , where this Court tried to discourage colourable devices. It is true that tax planning may be legitimate provided it is within the framework of the law. Colourable devices cannot be part of tax planning and it is wrong to encourage or entertain the belief that it is honourable to avoid the payment of tax by dubious methods. It is the obligation of every citizen to pay the taxes honestly without resorting to subterfuges. It is also true that in order to create the atmosphere of tax compliance, taxes must be reasonably collected and when collected, should be utilized in proper expenditure and not wasted. [See the observations in Commissioner of Wealth Tax v. Arvind Narottam 1988 4 SCC 113 ]. It is not necessary, in the facts of this case to notice the change in the trend of judicial approach in England : [Sherdeley v. Sherdeley 1987 2 AER 54]. While it is true, as observed by Chinnappa Reddy, J. in Mcdowell and Co. Ltd., v. Commerical Tax Officer (supra) too much to expect the legislature to intervene and take care of every device and scheme to avoid taxation and it is up to the court sometimes to take stock to determine the nature of the new and sophisticated legal devices to avoid tax and to expose the devices for what they realy are and to refuse to give judicial benediction, it is necessary to remember as observed by Lord Reid in Greenberg v. IRC [1971 (47) TC 240 (HL)] that one must find out the true nature of the transaction. It is unsafe to make bad laws out of hard facts and one should avoid subverting the rule of law. Unfortunately, in the instant case, facts have not been found with such an approach by the lower authorities and the High Court had no alternative on the facts as found but to quash the Show Cause and the Demand Notices.
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price should be the price for which the buyer sold the product in the market. According to the Assistant Collector the buyer was the manufacturer of goods and not the seller. The Collector of Central Excise allowed the appeals of the respondent and accepted the plea that the wholesale price disclosed by the seller was the proper basis for determining the excise duty. The Appellate orders however, revised by the Central Government under sub-section (2) of Section 36 of the Act and the orders made by the Assistant Collector were restored. According to the Central Government the buyer was the person engaged in the production of the goods and the seller merely manufactured them on behalf of the buyer and that under the agreements the seller was required to affix the trade-marks of the buyer on the manufactured goods and that indicated that the goods belonged to the buyer. There is a ring of similarity between the facts of that case and the facts of the instant appeal before us. The orders of the Central Government were challenged under Article 226 of the Constitution. The High Court held that the goods were manufactured by the seller as its own goods, and therefore, the wholesale price charged by the seller must form the true basis for the levy of excise duty. On appeal, this Court held that the High Court was right in concluding that the wholesale price of the goods manufactured by the seller was the wholesale price at which it sold those goods to the buyer, and it was not the wholesale price at which the buyer sold those goods to others. The relevant provisions of the agreements and the other material on the record showed that the manufacturing programme was drawn up jointly by the buyer and the seller and not merely by the buyer, and that the buyer was obliged to purchase the manufactured product from the seller only if it conformed to the buyer s standard. For this purpose, the buyer was entitled to test a sample of each batch of the manufactured product and it was only on approval by him that the product was released for sale by the seller to the buyer. It was apparent that the seller could not be said to manufacture the goods in those facts, it was held, on behalf of the buyer. It was further found that it was clear from the record that the trade-marks of the buyer were to be affixed on those goods only which were found to conform to the specifications or standard stipulated by the buyer. All goods not approved by the buyer could not bear those trade-marks and were disposed of by the sellers without the advantage of those trademarks..10. In view of the facts that have emerged in this case, the High Court came to the conclusion that the market value of the goods of the respondent herein was the price charged from M/s. Bush India Ltd. and not the market value at which price M/s. Bush India Ltd. sold to its whole-sellers for the purpose of payment of excise duty. The High Court, therefore, quashed the Show Cause Notice and the Demandis true that the facts of this case do warrant a great deal of suspicion. But it is not possible to hold otherwise than that has been held by the High Court in this case.It is true, as Shri Rao drew our attention, that even though the Corporation might be a legal personality distinct from its members, the Court is entitled to lift the mask of corporate entity if the conception is used for tax evasion, or to circumvent tax obligation or to perpetrate a fraud. In this connection, reference may be made to the observations of this Court Juggi Lal Kamlapat v. Commissioner of69 (1) SCR 988. In the background of the facts found we, however, need not get ourselves bogged with the controversy as to judicial approach to tax avoidance devices as was pointed out in McDowell and Co. Ltd. v. Commercial Tax Officer1985 (154) ITR 148 , where this Court tried to discourage colourable devices. It is true that tax planning may be legitimate provided it is within the framework of the law. Colourable devices cannot be part of tax planning and it is wrong to encourage or entertain the belief that it is honourable to avoid the payment of tax by dubious methods. It is the obligation of every citizen to pay the taxes honestly without resorting to subterfuges. It is also true that in order to create the atmosphere of tax compliance, taxes must be reasonably collected and when collected, should be utilized in proper expenditure and not wasted. [See the observations in Commissioner of Wealth Tax v. Arvind Narottam 1988 4 SCC 113 ]. It is not necessary, in the facts of this case to notice the change in the trend of judicial approach in England : [Sherdeley v. Sherdeley 1987 2 AER 54]. While it is true, as observed by Chinnappa Reddy, J. in Mcdowell and Co. Ltd., v. Commerical Tax Officer (supra) too much to expect the legislature to intervene and take care of every device and scheme to avoid taxation and it is up to the court sometimes to take stock to determine the nature of the new and sophisticated legal devices to avoid tax and to expose the devices for what they realy are and to refuse to give judicial benediction, it is necessary to remember as observed by Lord Reid inGreenberg v. IRC [1971 (47) TC 240 (HL)]that one must find out the true nature of the transaction. It is unsafe to make bad laws out of hard facts and one should avoid subverting the rule of law. Unfortunately, in the instant case, facts have not been found with such an approach by the lower authorities and the High Court had no alternative on the facts as found but to quash the Show Cause and the Demand Notices.
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T. Govindaraja Mudaliar Etc. Etc Vs. The State Of Tamil Nadu & Others
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the Act was acting as a quasi-judicial tribunal. Since he was a member of the committee which had made the report in accordance with which the scheme had been published under Section 68-C it is claimed that the Secretary, Home, acted as a Judge in his own cause. In other words, he participated in the policy decision of the Government and then he exercised the powers under Section 68-D of hearing objections and considering the merits of the schemes. This, it is suggested, is wholly contrary to the rules of natural justice the hearing by the Secretary, Home, being vitiated by bias. The learned single Judge of the Calcutta High Court in East India Electric Supply and Traction Co., Ltd. v. S. C. Dutta, (1955) 59 Cal WN 162 held that where a member of a Rating Committee had already pre-judged at least one of the issues that had been raised before it, his inclusion as a member made by Rating Committee and its functioning, contrary to law. In D. Satyanarayanamurthy v. A. P. State Road Transport Corporation, (1961) 1 SCR 642 = (AIR 1961 SC 82 ) the Minister in charge of the port-folio of Transport had presided over the sub-committee constituted to implement the scheme of nationalisation of bus services. It was contended there that the same Minister could not be a Judge in his own case as he was biased against the private operators. That contention was negatived by this Court.It was pointed out that any decision arrived at by the sub-committee was not final or irrevocable and it was only a policy decision. The sub-committee was only meant to advise the State Government how to implement the policy of nationalisation. That could not either expressly or by necessary implication involve a predetermination of the issue. The Minister, therefore, could not be said to have any such bias as disqualified him from hearing objections under Chapter IV-A of the Act in which Section 68-D occurs. This case is quite apposite for disposing of the submission based on bias.15. The second reason advanced in support of the challenge to the schemes is based on what is described as complete absence of coordination so far as the various schemes are concerned. The objectionable feature of the schemes is stated to be that there was no proper coordination of the services on the various routes which are to be nationalised and which should have been done by an integrated scheme. We are unable to see that if the schemes conformed to the requirements of Section 68-C why they should be struck down on the only ground that routes were to be nationalised as and when permits of private operators on those routes expired. Section 68-C permits the State Transport Undertaking to operate a service in relation to any area or route or even a portion thereof and to the exclusion, complete or partial, of other persons. The decision in Shrinivasa Reddy v. State of Mysore, (1960) 2 SCR 130 = (AIR 1960 SC 350 ) can be of no avail to the appellants because no question arose of coordination of services on the various routes which were to be nationalised and in respect of which the nationalisation was to become effective from different dates. In that case it was pointed out that peicemeal nationalisation of a particular route is not permissible. It is quite clear that each route can be nationalised and it is difficult to comprehend that when the law empowers that to be done any further conditions should be superimposed of coordinating the services on all the routes which are proposed to be nationalised.The following observations with regard to the above decision in D. Satyanarayanamurthys case, (1961) 1 SCR 642 = (AIR 1961 SC 82 ) explain the law on the point :"This Court did not lay down that there cannot be any phased programme in the nationalisation of transport services in a State or in a district nor did it hold that there cannot be more than one scheme for a district or a part of a district. The observations of this Court in regard to the implementation of a scheme piecemeal were aimed at to prevent an abuse of power by discriminating against some operators and in favour of others in respect of a single scheme."16. Learned Counsel for the appellants laid a great deal of emphasis on the manner in which the policy decisions were taken by the Government and the mandatory language contained in the Government Orders already referred to which hardly left any discretion or choice to the authority considering the objections under Section 68-D of the Act. We are unable to see how any authority who exercises individual power under Section 68-D is bound by what has been stated as a policy decision of the Government. In fact his main function is to hear such objections as may be preferred to the schemes published under Section 68-C and approve or modify the schemes so published after giving an opportunity to the objector. His function being of a quasi-judicial nature he is to bring a judicial approach to the matter and even if he happens to be a servant of the Government he is not bound in any way to carry out or endorse the policy of the Government without discharging his duties as contemplated by Section 68-D.We are unable to hold nor has anything been shown to us except the suggestion that the schemes as published under Section 68-C were approved in toto that the authority acting under Section 68-D had not discharged his duties in a proper and judicial manner. The mere fact that the schemes were approved without any modification cannot establish that the Secretary. Home, who exercised the functions of the State Government under Section 68-D had failed to carry out his functions as laid down in Section 68-D or that he had approved the schemes without any modification merely because the Government orders contained language of mandatory nature.
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0[ds]Bhanji Munji (1955) 1 SCR 777 = (AIR 1955 SC 41 ) and other decisions which followed it were based mainly on an examination of the inter-relationship between Article 19 (1) (f) and Art. 31 (2). There is no question of any acquisition or requisition in Chapter IV-A of the Act. The relevant decision for the purpose of these cases was only the one given in Kochunis case, (1960) 3 SCR 887 = (AIR 1960 SC 1080 ) after which no doubt was left that the authority of law seeking to deprive a person of his property otherwise than by way of acquisition or requisition was open to challenge on the ground that it constituted on the ground that it constituted infringement of the fundamental rights guaranteed by Art. 19 (1) (f).It was, therefore, open to those affected by the provisions of Chapter IV-A to have agitated before this Court the question which is being raised now based on the guarantee embodied in Art. 19 (1) (f) which was never done. It is apparently too late in the day now to pursue this line ofis possible and likely that the value of the buses owned by the operators may be prejudicially affected or that they may not be able to carry on trade or business on the nationalised routes. According to the clear instance given in Akadshi Padhans case, (1963) Supp 2 SCR 691 = (AIR 1963 SC 1047 ) to which reference has already been made a law relating to such a monopoly would not normally infringe the citizens fundamental right under Article 19 (1)examining the above contentions it may be stated that there is no dispute on certain matters. The first is that according to the scheme of nationalisation which has been impugned all existing permits must come to an end before each scheme will become enforceable on a particular route. In other words by virtue of the scheme the existing permits of any operator will not be cancelled. None of the properties or assets of the appellants is going to be acquired. So far as the renewal of a permit is concerned this Court has already held that no operator can claim renewal as a matter of right. Section 68-G of the Act contains the principle and method of determination of compensation if any existing permit is cancelled or its terms are modified. In the present cases, however, no such question arises because no occasion for cancellation of existing permits can arise in view of the terms of the impugned scheme. The effect of nationalisation on the properties or business of the operators is not such as cannot be regarded to be a reasonable restriction in the interest of the general public within Article 19 (5) in the same way as a State monopoly must be presumed to be reasonable and in the interest of the general public so far as Article 19 (1) (g) and Article 19 (6) are concerned. This is in view of the fact that the tests prescribed by Clauses 5 and 6 of Article 19 are the same : (vide Akadshi Padhans case, (1963) Supp 2 SCR 691 = (AIR 1963 SC 1047 ). We are accordingly unable to sustain the challenge under Article 19 (1) (f) even if such a challenge is open to the appellants in the light of what has been observedit is suggested, is wholly contrary to the rules of natural justice the hearing by the Secretary, Home, being vitiated by bias. The learned single Judge of the Calcutta High Court in East India Electric Supply and Traction Co., Ltd. v. S. C. Dutta, (1955) 59 Cal WN 162 held that where a member of a Rating Committee had already pre-judged at least one of the issues that had been raised before it, his inclusion as a member made by Rating Committee and its functioning, contrary to law. In D. Satyanarayanamurthy v. A. P. State Road Transport Corporation, (1961) 1 SCR 642 = (AIR 1961 SC 82 ) the Minister in charge of the port-folio of Transport had presided over the sub-committee constituted to implement the scheme of nationalisation of bus services. It was contended there that the same Minister could not be a Judge in his own case as he was biased against the private operators. That contention was negatived by this Court.It was pointed out that any decision arrived at by the sub-committee was not final or irrevocable and it was only a policy decision. The sub-committee was only meant to advise the State Government how to implement the policy of nationalisation. That could not either expressly or by necessary implication involve a predetermination of the issue. The Minister, therefore, could not be said to have any such bias as disqualified him from hearing objections under Chapter IV-A of the Act in which Section 68-D occurs. This case is quite apposite for disposing of the submission based onare unable to see that if the schemes conformed to the requirements of Section 68-C why they should be struck down on the only ground that routes were to be nationalised as and when permits of private operators on those routes expired. Section 68-C permits the State Transport Undertaking to operate a service in relation to any area or route or even a portion thereof and to the exclusion, complete or partial, of other persons. The decision in Shrinivasa Reddy v. State of Mysore, (1960) 2 SCR 130 = (AIR 1960 SC 350 ) can be of no avail to the appellants because no question arose of coordination of services on the various routes which were to be nationalised and in respect of which the nationalisation was to become effective from different dates. In that case it was pointed out that peicemeal nationalisation of a particular route is not permissible. It is quite clear that each route can be nationalised and it is difficult to comprehend that when the law empowers that to be done any further conditions should be superimposed of coordinating the services on all the routes which are proposed to beare unable to see how any authority who exercises individual power under Section 68-D is bound by what has been stated as a policy decision of the Government. In fact his main function is to hear such objections as may be preferred to the schemes published under Section 68-C and approve or modify the schemes so published after giving an opportunity to the objector. His function being of a quasi-judicial nature he is to bring a judicial approach to the matter and even if he happens to be a servant of the Government he is not bound in any way to carry out or endorse the policy of the Government without discharging his duties as contemplated by Section 68-D.We are unable to hold nor has anything been shown to us except the suggestion that the schemes as published under Section 68-C were approved in toto that the authority acting under Section 68-D had not discharged his duties in a proper and judicial manner. The mere fact that the schemes were approved without any modification cannot establish that the Secretary. Home, who exercised the functions of the State Government under Section 68-D had failed to carry out his functions as laid down in Section 68-D or that he had approved the schemes without any modification merely because the Government orders contained language of mandatoryare unable to hold that there is much substance in this argument.Bhanji Munji (1955) 1 SCR 777 = (AIR 1955 SC 41 ) and other decisions which followed it were based mainly on an examination of thebetween Article 19 (1) (f) and Art. 31 (2). There is no question of any acquisition or requisition in Chapterof the Act.
| 0 | 6,280 | 1,416 |
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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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the Act was acting as a quasi-judicial tribunal. Since he was a member of the committee which had made the report in accordance with which the scheme had been published under Section 68-C it is claimed that the Secretary, Home, acted as a Judge in his own cause. In other words, he participated in the policy decision of the Government and then he exercised the powers under Section 68-D of hearing objections and considering the merits of the schemes. This, it is suggested, is wholly contrary to the rules of natural justice the hearing by the Secretary, Home, being vitiated by bias. The learned single Judge of the Calcutta High Court in East India Electric Supply and Traction Co., Ltd. v. S. C. Dutta, (1955) 59 Cal WN 162 held that where a member of a Rating Committee had already pre-judged at least one of the issues that had been raised before it, his inclusion as a member made by Rating Committee and its functioning, contrary to law. In D. Satyanarayanamurthy v. A. P. State Road Transport Corporation, (1961) 1 SCR 642 = (AIR 1961 SC 82 ) the Minister in charge of the port-folio of Transport had presided over the sub-committee constituted to implement the scheme of nationalisation of bus services. It was contended there that the same Minister could not be a Judge in his own case as he was biased against the private operators. That contention was negatived by this Court.It was pointed out that any decision arrived at by the sub-committee was not final or irrevocable and it was only a policy decision. The sub-committee was only meant to advise the State Government how to implement the policy of nationalisation. That could not either expressly or by necessary implication involve a predetermination of the issue. The Minister, therefore, could not be said to have any such bias as disqualified him from hearing objections under Chapter IV-A of the Act in which Section 68-D occurs. This case is quite apposite for disposing of the submission based on bias.15. The second reason advanced in support of the challenge to the schemes is based on what is described as complete absence of coordination so far as the various schemes are concerned. The objectionable feature of the schemes is stated to be that there was no proper coordination of the services on the various routes which are to be nationalised and which should have been done by an integrated scheme. We are unable to see that if the schemes conformed to the requirements of Section 68-C why they should be struck down on the only ground that routes were to be nationalised as and when permits of private operators on those routes expired. Section 68-C permits the State Transport Undertaking to operate a service in relation to any area or route or even a portion thereof and to the exclusion, complete or partial, of other persons. The decision in Shrinivasa Reddy v. State of Mysore, (1960) 2 SCR 130 = (AIR 1960 SC 350 ) can be of no avail to the appellants because no question arose of coordination of services on the various routes which were to be nationalised and in respect of which the nationalisation was to become effective from different dates. In that case it was pointed out that peicemeal nationalisation of a particular route is not permissible. It is quite clear that each route can be nationalised and it is difficult to comprehend that when the law empowers that to be done any further conditions should be superimposed of coordinating the services on all the routes which are proposed to be nationalised.The following observations with regard to the above decision in D. Satyanarayanamurthys case, (1961) 1 SCR 642 = (AIR 1961 SC 82 ) explain the law on the point :"This Court did not lay down that there cannot be any phased programme in the nationalisation of transport services in a State or in a district nor did it hold that there cannot be more than one scheme for a district or a part of a district. The observations of this Court in regard to the implementation of a scheme piecemeal were aimed at to prevent an abuse of power by discriminating against some operators and in favour of others in respect of a single scheme."16. Learned Counsel for the appellants laid a great deal of emphasis on the manner in which the policy decisions were taken by the Government and the mandatory language contained in the Government Orders already referred to which hardly left any discretion or choice to the authority considering the objections under Section 68-D of the Act. We are unable to see how any authority who exercises individual power under Section 68-D is bound by what has been stated as a policy decision of the Government. In fact his main function is to hear such objections as may be preferred to the schemes published under Section 68-C and approve or modify the schemes so published after giving an opportunity to the objector. His function being of a quasi-judicial nature he is to bring a judicial approach to the matter and even if he happens to be a servant of the Government he is not bound in any way to carry out or endorse the policy of the Government without discharging his duties as contemplated by Section 68-D.We are unable to hold nor has anything been shown to us except the suggestion that the schemes as published under Section 68-C were approved in toto that the authority acting under Section 68-D had not discharged his duties in a proper and judicial manner. The mere fact that the schemes were approved without any modification cannot establish that the Secretary. Home, who exercised the functions of the State Government under Section 68-D had failed to carry out his functions as laid down in Section 68-D or that he had approved the schemes without any modification merely because the Government orders contained language of mandatory nature.
### Response:
0
### Explanation:
will become enforceable on a particular route. In other words by virtue of the scheme the existing permits of any operator will not be cancelled. None of the properties or assets of the appellants is going to be acquired. So far as the renewal of a permit is concerned this Court has already held that no operator can claim renewal as a matter of right. Section 68-G of the Act contains the principle and method of determination of compensation if any existing permit is cancelled or its terms are modified. In the present cases, however, no such question arises because no occasion for cancellation of existing permits can arise in view of the terms of the impugned scheme. The effect of nationalisation on the properties or business of the operators is not such as cannot be regarded to be a reasonable restriction in the interest of the general public within Article 19 (5) in the same way as a State monopoly must be presumed to be reasonable and in the interest of the general public so far as Article 19 (1) (g) and Article 19 (6) are concerned. This is in view of the fact that the tests prescribed by Clauses 5 and 6 of Article 19 are the same : (vide Akadshi Padhans case, (1963) Supp 2 SCR 691 = (AIR 1963 SC 1047 ). We are accordingly unable to sustain the challenge under Article 19 (1) (f) even if such a challenge is open to the appellants in the light of what has been observedit is suggested, is wholly contrary to the rules of natural justice the hearing by the Secretary, Home, being vitiated by bias. The learned single Judge of the Calcutta High Court in East India Electric Supply and Traction Co., Ltd. v. S. C. Dutta, (1955) 59 Cal WN 162 held that where a member of a Rating Committee had already pre-judged at least one of the issues that had been raised before it, his inclusion as a member made by Rating Committee and its functioning, contrary to law. In D. Satyanarayanamurthy v. A. P. State Road Transport Corporation, (1961) 1 SCR 642 = (AIR 1961 SC 82 ) the Minister in charge of the port-folio of Transport had presided over the sub-committee constituted to implement the scheme of nationalisation of bus services. It was contended there that the same Minister could not be a Judge in his own case as he was biased against the private operators. That contention was negatived by this Court.It was pointed out that any decision arrived at by the sub-committee was not final or irrevocable and it was only a policy decision. The sub-committee was only meant to advise the State Government how to implement the policy of nationalisation. That could not either expressly or by necessary implication involve a predetermination of the issue. The Minister, therefore, could not be said to have any such bias as disqualified him from hearing objections under Chapter IV-A of the Act in which Section 68-D occurs. This case is quite apposite for disposing of the submission based onare unable to see that if the schemes conformed to the requirements of Section 68-C why they should be struck down on the only ground that routes were to be nationalised as and when permits of private operators on those routes expired. Section 68-C permits the State Transport Undertaking to operate a service in relation to any area or route or even a portion thereof and to the exclusion, complete or partial, of other persons. The decision in Shrinivasa Reddy v. State of Mysore, (1960) 2 SCR 130 = (AIR 1960 SC 350 ) can be of no avail to the appellants because no question arose of coordination of services on the various routes which were to be nationalised and in respect of which the nationalisation was to become effective from different dates. In that case it was pointed out that peicemeal nationalisation of a particular route is not permissible. It is quite clear that each route can be nationalised and it is difficult to comprehend that when the law empowers that to be done any further conditions should be superimposed of coordinating the services on all the routes which are proposed to beare unable to see how any authority who exercises individual power under Section 68-D is bound by what has been stated as a policy decision of the Government. In fact his main function is to hear such objections as may be preferred to the schemes published under Section 68-C and approve or modify the schemes so published after giving an opportunity to the objector. His function being of a quasi-judicial nature he is to bring a judicial approach to the matter and even if he happens to be a servant of the Government he is not bound in any way to carry out or endorse the policy of the Government without discharging his duties as contemplated by Section 68-D.We are unable to hold nor has anything been shown to us except the suggestion that the schemes as published under Section 68-C were approved in toto that the authority acting under Section 68-D had not discharged his duties in a proper and judicial manner. The mere fact that the schemes were approved without any modification cannot establish that the Secretary. Home, who exercised the functions of the State Government under Section 68-D had failed to carry out his functions as laid down in Section 68-D or that he had approved the schemes without any modification merely because the Government orders contained language of mandatoryare unable to hold that there is much substance in this argument.Bhanji Munji (1955) 1 SCR 777 = (AIR 1955 SC 41 ) and other decisions which followed it were based mainly on an examination of thebetween Article 19 (1) (f) and Art. 31 (2). There is no question of any acquisition or requisition in Chapterof the Act.
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M/S. Mahalaxmi Motors Ltd Vs. Mandal Revenue Officer
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been specifically stated therein, which is to the following effect : “4. It is submitted that the Respondent Company previously known as M/s Mahalaxmi Motors Pvt. Limited changed its name as Jublee Honda Motors. The land encroached by the respondent is surveyed by the Mandal Revenue Officer through Mandal Surveyor and found that the respondent not only encroached 6946 sq. mtrs. (Amended as per orders passed in I.A. No. 94 of 2003 dated 13.06.2003) of Government land in Sy. No. 82 of Bowenpally, but also encroached an extent of 842 sq. mtrs. (Amended as per orders passed in I.A. No. 94 of 2003 dated 13.06.2003) Government lands in Sy. No. 157/1 of Thokatta Village as shown in the sketch. The Respondent illegally encroached the application scheduled property and construed sheds and running Mechanical workshop for vehicles. The company constructed workshop and compound wall of an extent of 6946 Sq. Mts. (Amended as per orders passed in I.A. No. 94 of 2003 dated 13.06.2003) in Sy. No. 82/p of Bowenpally and an extent of 842 Sq. Mtrs. (Amended as per orders passed in I.A. No. 94 of 2003 dated 13.06.,2003) in Sy. No.157/1P of Thokatta Village. The application schedule land is valuable land abutting Highway and it is required for public purpose.The cause of action arose when the Mandal Revenue Officer has issued notice on 27./4.87 to the Respondent under Andhra Pradesh Land Encroachment Act and noticed that the Respondent illegally encroached the Government land.It is submitted that the Application Scheduled land situated abutting to the Hashamathpet Road which is a link road between two National High Ways running from Hyderabad to Karimnagar and Nizamabad, and it is very valuable property and is required for public purpose. The market value of the land is Rs. 5000/- per Sq. Mts. The Respondent wrongfully using the Government land for Commercial purpose from 1985 and the Respondent is liable to pay a sum of Rs. 20/- Sq. Mts. Per month from 1985 till the date of disposal of the LGC as means profits/compensation to the Government.” 42. Thus, not only the history of litigation but also area of encroachment was stated. A sketch map showing the same was annexed thereto. The fact that the appellant had made constructions illegally and had been running a workshop was specifically pleaded. One of the reliefs prayed for therein, inter alia, was to declare that the appellant was a land grabber. It is, therefore, not a case where it can be said that the respondent failed to plead the requisite ingredients of the definition of the term ‘land grabbing’. 43. We have noticed hereinbefore the findings of the learned Special Court. The Special Court took note of the aforementioned contentions of the parties hereto and arrived at a definite finding, having regard to the history of the litigation between the parties, that the appellant was a land grabber. 44. The application filed by the appellant before the State Government for regularization of the land although may not be determinative of the issue as to whether it is a land grabber or not could be taken into consideration for a limited purpose, namely, admission or acknowledgement on its part in regard to the title of the State. It was possible for the appellant to file an application for regularization of land without prejudice to its rights and contentions in the pending proceedings, but having regard to the decisions rendered by the Andhra Pradesh High Court in two writ petitions, it would be fair to presume that the appellant filed the said application knowing fully well as to where it stood. Once it had taken a specified stand knowing fully well that it had no right, title and interest in or over the land in question, it cannot in law turn round and contend that the same was not binding on it. Doctrine of estoppel in a situation of this nature, in our opinion, would squarely apply. An abstract belief on the part of the appellant that its vendor had a marketable title and it was getting a good title to the land is not decisive. Whether any action was taken by the authorities of the State in regard to the possession of Ramender Reddy or the appellant, in our opinion, is wholly irrelevant inasmuch Ramender Reddy and consequently the appellant had no title over the property nor acquired any title by prescription. Law does not contemplate any vacuum in the title. Either the State had the title or the appellant and its predecessor. 45. Submission of Mr. Dewan that it was obligatory on the part of the First Respondent to make averments that the appellant illegally, forcibly, unscrupulously or with criminal intention of grabbing the Government land entered upon the Government land, in our opinion, in the fact situation obtaining herein, was not necessary. Pleadings of the parties, it is now well-settled are not to be construed in a pedantic manner. [See Des Raj and Ors. v. Bhagat Ram (Dead) by Lrs. & Ors. [2007 (3) SCALE 371]. 46. An averment that the appellant had been in unlawful possession itself is sufficient to invoke the provisions of the said Act in view of the decision of this Court in Konda Lakshmana Bapuji (supra). Keeping in view the fact that the appellant or the Ramender Reddy had no title and consequently he could not acquire any title, all other contentions raised on its behalf, in our opinion, pales into insignificance. The fact of the matter squarely covers the ingredients of Section 2(e) of the Act as interpreted by this Court in Konda Lakshmana Bapuji (supra). 47. Submission of the learned counsel that even an order dated 03.08.2007 is not a speaking order cannot be considered in this application. However, from a perusal of the said order, it is evident that therein all relevant circumstances have been taken into consideration. Recommendations made by the Collector or the Commissioner for regularization of the land are not binding on the State.48. We, therefore,
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0[ds]The cause of action arose when the Mandal Revenue Officer has issued notice on 27./4.87 to the Respondent under Andhra Pradesh Land Encroachment Act and noticed that the Respondent illegally encroached the Government land.It is submitted that the Application Scheduled land situated abutting to the Hashamathpet Road which is a link road between two National High Ways running from Hyderabad to Karimnagar and Nizamabad, and it is very valuable property and is required for public purpose. The market value of the land is Rs. 5000/- per Sq. Mts. The Respondent wrongfully using the Government land for Commercial purpose from 1985 and the Respondent is liable to pay a sum of Rs. 20/- Sq. Mts. Per month from 1985 till the date of disposal of the LGC as means profits/compensation to thenot only the history of litigation but also area of encroachment was stated. A sketch map showing the same was annexed thereto. The fact that the appellant had made constructions illegally and had been running a workshop was specifically pleaded. One of the reliefs prayed for therein, inter alia, was to declare that the appellant was a land grabber. It is, therefore, not a case where it can be said that the respondent failed to plead the requisite ingredients of the definition of the term ‘landhave noticed hereinbefore the findings of the learned Special Court. The Special Court took note of the aforementioned contentions of the parties hereto and arrived at a definite finding, having regard to the history of the litigation between the parties, that the appellant was a landof Mr. Dewan that it was obligatory on the part of the First Respondent to make averments that the appellant illegally, forcibly, unscrupulously or with criminal intention of grabbing the Government land entered upon the Government land, in our opinion, in the fact situation obtaining herein, was not necessary. Pleadings of the parties, it is now well-settled are not to be construed in a pedantic manner. [See Des Raj and Ors. v. Bhagat Ram (Dead) by Lrs. & Ors. [2007 (3) SCALEaverment that the appellant had been in unlawful possession itself is sufficient to invoke the provisions of the said Act in view of the decision of this Court in Konda Lakshmana Bapuji (supra). Keeping in view the fact that the appellant or the Ramender Reddy had no title and consequently he could not acquire any title, all other contentions raised on its behalf, in our opinion, pales into insignificance. The fact of the matter squarely covers the ingredients of Section 2(e) of the Act as interpreted by this Court in Konda Lakshmana Bapujiof the learned counsel that even an order dated 03.08.2007 is not a speaking order cannot be considered in this application. However, from a perusal of the said order, it is evident that therein all relevant circumstances have been taken into consideration. Recommendations made by the Collector or the Commissioner for regularization of the land are not binding on the State.
| 0 | 9,784 | 551 |
### 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:
been specifically stated therein, which is to the following effect : “4. It is submitted that the Respondent Company previously known as M/s Mahalaxmi Motors Pvt. Limited changed its name as Jublee Honda Motors. The land encroached by the respondent is surveyed by the Mandal Revenue Officer through Mandal Surveyor and found that the respondent not only encroached 6946 sq. mtrs. (Amended as per orders passed in I.A. No. 94 of 2003 dated 13.06.2003) of Government land in Sy. No. 82 of Bowenpally, but also encroached an extent of 842 sq. mtrs. (Amended as per orders passed in I.A. No. 94 of 2003 dated 13.06.2003) Government lands in Sy. No. 157/1 of Thokatta Village as shown in the sketch. The Respondent illegally encroached the application scheduled property and construed sheds and running Mechanical workshop for vehicles. The company constructed workshop and compound wall of an extent of 6946 Sq. Mts. (Amended as per orders passed in I.A. No. 94 of 2003 dated 13.06.2003) in Sy. No. 82/p of Bowenpally and an extent of 842 Sq. Mtrs. (Amended as per orders passed in I.A. No. 94 of 2003 dated 13.06.,2003) in Sy. No.157/1P of Thokatta Village. The application schedule land is valuable land abutting Highway and it is required for public purpose.The cause of action arose when the Mandal Revenue Officer has issued notice on 27./4.87 to the Respondent under Andhra Pradesh Land Encroachment Act and noticed that the Respondent illegally encroached the Government land.It is submitted that the Application Scheduled land situated abutting to the Hashamathpet Road which is a link road between two National High Ways running from Hyderabad to Karimnagar and Nizamabad, and it is very valuable property and is required for public purpose. The market value of the land is Rs. 5000/- per Sq. Mts. The Respondent wrongfully using the Government land for Commercial purpose from 1985 and the Respondent is liable to pay a sum of Rs. 20/- Sq. Mts. Per month from 1985 till the date of disposal of the LGC as means profits/compensation to the Government.” 42. Thus, not only the history of litigation but also area of encroachment was stated. A sketch map showing the same was annexed thereto. The fact that the appellant had made constructions illegally and had been running a workshop was specifically pleaded. One of the reliefs prayed for therein, inter alia, was to declare that the appellant was a land grabber. It is, therefore, not a case where it can be said that the respondent failed to plead the requisite ingredients of the definition of the term ‘land grabbing’. 43. We have noticed hereinbefore the findings of the learned Special Court. The Special Court took note of the aforementioned contentions of the parties hereto and arrived at a definite finding, having regard to the history of the litigation between the parties, that the appellant was a land grabber. 44. The application filed by the appellant before the State Government for regularization of the land although may not be determinative of the issue as to whether it is a land grabber or not could be taken into consideration for a limited purpose, namely, admission or acknowledgement on its part in regard to the title of the State. It was possible for the appellant to file an application for regularization of land without prejudice to its rights and contentions in the pending proceedings, but having regard to the decisions rendered by the Andhra Pradesh High Court in two writ petitions, it would be fair to presume that the appellant filed the said application knowing fully well as to where it stood. Once it had taken a specified stand knowing fully well that it had no right, title and interest in or over the land in question, it cannot in law turn round and contend that the same was not binding on it. Doctrine of estoppel in a situation of this nature, in our opinion, would squarely apply. An abstract belief on the part of the appellant that its vendor had a marketable title and it was getting a good title to the land is not decisive. Whether any action was taken by the authorities of the State in regard to the possession of Ramender Reddy or the appellant, in our opinion, is wholly irrelevant inasmuch Ramender Reddy and consequently the appellant had no title over the property nor acquired any title by prescription. Law does not contemplate any vacuum in the title. Either the State had the title or the appellant and its predecessor. 45. Submission of Mr. Dewan that it was obligatory on the part of the First Respondent to make averments that the appellant illegally, forcibly, unscrupulously or with criminal intention of grabbing the Government land entered upon the Government land, in our opinion, in the fact situation obtaining herein, was not necessary. Pleadings of the parties, it is now well-settled are not to be construed in a pedantic manner. [See Des Raj and Ors. v. Bhagat Ram (Dead) by Lrs. & Ors. [2007 (3) SCALE 371]. 46. An averment that the appellant had been in unlawful possession itself is sufficient to invoke the provisions of the said Act in view of the decision of this Court in Konda Lakshmana Bapuji (supra). Keeping in view the fact that the appellant or the Ramender Reddy had no title and consequently he could not acquire any title, all other contentions raised on its behalf, in our opinion, pales into insignificance. The fact of the matter squarely covers the ingredients of Section 2(e) of the Act as interpreted by this Court in Konda Lakshmana Bapuji (supra). 47. Submission of the learned counsel that even an order dated 03.08.2007 is not a speaking order cannot be considered in this application. However, from a perusal of the said order, it is evident that therein all relevant circumstances have been taken into consideration. Recommendations made by the Collector or the Commissioner for regularization of the land are not binding on the State.48. We, therefore,
### Response:
0
### Explanation:
The cause of action arose when the Mandal Revenue Officer has issued notice on 27./4.87 to the Respondent under Andhra Pradesh Land Encroachment Act and noticed that the Respondent illegally encroached the Government land.It is submitted that the Application Scheduled land situated abutting to the Hashamathpet Road which is a link road between two National High Ways running from Hyderabad to Karimnagar and Nizamabad, and it is very valuable property and is required for public purpose. The market value of the land is Rs. 5000/- per Sq. Mts. The Respondent wrongfully using the Government land for Commercial purpose from 1985 and the Respondent is liable to pay a sum of Rs. 20/- Sq. Mts. Per month from 1985 till the date of disposal of the LGC as means profits/compensation to thenot only the history of litigation but also area of encroachment was stated. A sketch map showing the same was annexed thereto. The fact that the appellant had made constructions illegally and had been running a workshop was specifically pleaded. One of the reliefs prayed for therein, inter alia, was to declare that the appellant was a land grabber. It is, therefore, not a case where it can be said that the respondent failed to plead the requisite ingredients of the definition of the term ‘landhave noticed hereinbefore the findings of the learned Special Court. The Special Court took note of the aforementioned contentions of the parties hereto and arrived at a definite finding, having regard to the history of the litigation between the parties, that the appellant was a landof Mr. Dewan that it was obligatory on the part of the First Respondent to make averments that the appellant illegally, forcibly, unscrupulously or with criminal intention of grabbing the Government land entered upon the Government land, in our opinion, in the fact situation obtaining herein, was not necessary. Pleadings of the parties, it is now well-settled are not to be construed in a pedantic manner. [See Des Raj and Ors. v. Bhagat Ram (Dead) by Lrs. & Ors. [2007 (3) SCALEaverment that the appellant had been in unlawful possession itself is sufficient to invoke the provisions of the said Act in view of the decision of this Court in Konda Lakshmana Bapuji (supra). Keeping in view the fact that the appellant or the Ramender Reddy had no title and consequently he could not acquire any title, all other contentions raised on its behalf, in our opinion, pales into insignificance. The fact of the matter squarely covers the ingredients of Section 2(e) of the Act as interpreted by this Court in Konda Lakshmana Bapujiof the learned counsel that even an order dated 03.08.2007 is not a speaking order cannot be considered in this application. However, from a perusal of the said order, it is evident that therein all relevant circumstances have been taken into consideration. Recommendations made by the Collector or the Commissioner for regularization of the land are not binding on the State.
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Bala Financier Private Limited Vs. Ambala Bus Syndicate Private Limited
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G.B. PATTANAIK, J.(1) All these appeals by grant of special leave are directed against the judgment of the division bench of Punjab and Haryana High Court in company appeals which arise out of claim petitions filed under the provisions of Companies Act before the learned company judge and the company judge allowed the claim petitions in question. The companies having gone on liquidation, the official liquidator had been put in charge of the management of the affairs of the companies and the said official liquidator filed the application in question. The learned company judge framed as many as five issues of which the three important issues were - (i) whether the hire purchase agreement dated 15th November, 1978 is illegal; (ii) whether the hire purchase agreement is without consideration; and (iii) whether the so-called entries in the books of account of the company must be held to have been fabricated. On the basis of the materials produced before it, both oral and documentary, the learned company judge came to the conclusion that the transactions were genuine and accordingly allowed the claim petitions filed.(2) On an appeal being carried, the division bench re-appreciated the materials on record and then on setting aside the findings of the company judge, came to hold that the hire purchase agreements are invalid and unenforceable; and no liability can be fastened on the appellant company on the basis of such invalid hire purchase agreements. The division bench also, on appreciating the evidence of PW-1, Bhupender Singh, came to the conclusion that there has been a fair admission on his part that the vehicles in question had not been owned or possessed by the company and, in fact, the so-called hire purchase agreements had been entered into without the conditions precedent being satisfied. The division bench did consider the entry made in the ledger/books of account which was the only documentary evidence appear to have been adduced in support in support of the claim in question and ultimately came to hold that the agreements were not only invalid for the grounds indicated earlier, but they were not baked by any consideration. With these conclusions, the findings of the company judge having been set aside and the company appeals having been allowed, the present appeals have been preferred. (3) Mr. Ashok Mathur, learned counsel appearing for the appellants, contended with force that the division bench being a court of appeal against the judgment of the learned company judge was duty-bound to consider all the relevant materials which had been considered by the company judge in arriving at his conclusion and committed error in not considering several relevant materials. He also further contended that the evidence of Bhupender Singh has been misconstrued and misread and such misconstruction has led to the conclusion of the division bench, which must be held to be erroneous. (4) Though ordinarily, this Court is not required to re-examine the evidence on the basis of which the court of appeal has based its conclusion, in view of the contention raised, we have been taken through the evidence of the said Bhupender Singh. In our considered opinion, it is difficult for us to agree with the submissions that the evidence of Bhupender Singh has either been misread or misconstrued by the division bench while considering the legality of the conclusions arrived at by the learned single judge. That apart, as stated earlier, the only item of documentary evidence which had been produced in the case in question is the entry in the ledger. Even the cash-books, which could have possibly corroborated the factum of payment of considerations, had not been produced before the company judge and no reason has been indicated as to why such documents had not been produced. Be that as it may, the ultimate conclusion of the division bench that the agreement is a sham transaction not backed by any consideration cannot be said to be perverse in any manner on the materials produced in the proceeding/We are, therefore, not inclined to interfere with the conclusions arrived at by the division bench in the appeals preferred against the judgment of the company judge.(5) Having perused the impugned judgment of the division bench and on examining the relevant materials that were placed before us by Mr. Mathur, appearing for the appellants, we see no infirmity with the conclusions arrived at by the division bench.
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0[ds](4) Though ordinarily, this Court is not required tothe evidence on the basis of which the court of appeal has based its conclusion, in view of the contention raised, we have been taken through the evidence of the said Bhupender Singh. In our considered opinion, it is difficult for us to agree with the submissions that the evidence of Bhupender Singh has either been misread or misconstrued by the division bench while considering the legality of the conclusions arrived at by the learned single judge. That apart, as stated earlier, the only item of documentary evidence which had been produced in the case in question is the entry in the ledger. Even thewhich could have possibly corroborated the factum of payment of considerations, had not been produced before the company judge and no reason has been indicated as to why such documents had not been produced. Be that as it may, the ultimate conclusion of the division bench that the agreement is a sham transaction not backed by any consideration cannot be said to be perverse in any manner on the materials produced in the proceeding/We are, therefore, not inclined to interfere with the conclusions arrived at by the division bench in the appeals preferred against the judgment of the company judge.(5) Having perused the impugned judgment of the division bench and on examining the relevant materials that were placed before us by Mr. Mathur, appearing for the appellants, we see no infirmity with the conclusions arrived at by the division bench.
| 0 | 802 | 280 |
### 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:
G.B. PATTANAIK, J.(1) All these appeals by grant of special leave are directed against the judgment of the division bench of Punjab and Haryana High Court in company appeals which arise out of claim petitions filed under the provisions of Companies Act before the learned company judge and the company judge allowed the claim petitions in question. The companies having gone on liquidation, the official liquidator had been put in charge of the management of the affairs of the companies and the said official liquidator filed the application in question. The learned company judge framed as many as five issues of which the three important issues were - (i) whether the hire purchase agreement dated 15th November, 1978 is illegal; (ii) whether the hire purchase agreement is without consideration; and (iii) whether the so-called entries in the books of account of the company must be held to have been fabricated. On the basis of the materials produced before it, both oral and documentary, the learned company judge came to the conclusion that the transactions were genuine and accordingly allowed the claim petitions filed.(2) On an appeal being carried, the division bench re-appreciated the materials on record and then on setting aside the findings of the company judge, came to hold that the hire purchase agreements are invalid and unenforceable; and no liability can be fastened on the appellant company on the basis of such invalid hire purchase agreements. The division bench also, on appreciating the evidence of PW-1, Bhupender Singh, came to the conclusion that there has been a fair admission on his part that the vehicles in question had not been owned or possessed by the company and, in fact, the so-called hire purchase agreements had been entered into without the conditions precedent being satisfied. The division bench did consider the entry made in the ledger/books of account which was the only documentary evidence appear to have been adduced in support in support of the claim in question and ultimately came to hold that the agreements were not only invalid for the grounds indicated earlier, but they were not baked by any consideration. With these conclusions, the findings of the company judge having been set aside and the company appeals having been allowed, the present appeals have been preferred. (3) Mr. Ashok Mathur, learned counsel appearing for the appellants, contended with force that the division bench being a court of appeal against the judgment of the learned company judge was duty-bound to consider all the relevant materials which had been considered by the company judge in arriving at his conclusion and committed error in not considering several relevant materials. He also further contended that the evidence of Bhupender Singh has been misconstrued and misread and such misconstruction has led to the conclusion of the division bench, which must be held to be erroneous. (4) Though ordinarily, this Court is not required to re-examine the evidence on the basis of which the court of appeal has based its conclusion, in view of the contention raised, we have been taken through the evidence of the said Bhupender Singh. In our considered opinion, it is difficult for us to agree with the submissions that the evidence of Bhupender Singh has either been misread or misconstrued by the division bench while considering the legality of the conclusions arrived at by the learned single judge. That apart, as stated earlier, the only item of documentary evidence which had been produced in the case in question is the entry in the ledger. Even the cash-books, which could have possibly corroborated the factum of payment of considerations, had not been produced before the company judge and no reason has been indicated as to why such documents had not been produced. Be that as it may, the ultimate conclusion of the division bench that the agreement is a sham transaction not backed by any consideration cannot be said to be perverse in any manner on the materials produced in the proceeding/We are, therefore, not inclined to interfere with the conclusions arrived at by the division bench in the appeals preferred against the judgment of the company judge.(5) Having perused the impugned judgment of the division bench and on examining the relevant materials that were placed before us by Mr. Mathur, appearing for the appellants, we see no infirmity with the conclusions arrived at by the division bench.
### Response:
0
### Explanation:
(4) Though ordinarily, this Court is not required tothe evidence on the basis of which the court of appeal has based its conclusion, in view of the contention raised, we have been taken through the evidence of the said Bhupender Singh. In our considered opinion, it is difficult for us to agree with the submissions that the evidence of Bhupender Singh has either been misread or misconstrued by the division bench while considering the legality of the conclusions arrived at by the learned single judge. That apart, as stated earlier, the only item of documentary evidence which had been produced in the case in question is the entry in the ledger. Even thewhich could have possibly corroborated the factum of payment of considerations, had not been produced before the company judge and no reason has been indicated as to why such documents had not been produced. Be that as it may, the ultimate conclusion of the division bench that the agreement is a sham transaction not backed by any consideration cannot be said to be perverse in any manner on the materials produced in the proceeding/We are, therefore, not inclined to interfere with the conclusions arrived at by the division bench in the appeals preferred against the judgment of the company judge.(5) Having perused the impugned judgment of the division bench and on examining the relevant materials that were placed before us by Mr. Mathur, appearing for the appellants, we see no infirmity with the conclusions arrived at by the division bench.
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BANGALORE INTERNATIONAL AIRPORT AREA PLANNING AUTHORITY Vs. BIRLA SUPRER BULK TERMINAL(NOW A UNIT OF ULTRA TECH CEMENT LIMITED
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and the interpretation thereof by the court should be to secure that object. In so far as the industrial area allotted by KIADB, the interpretation given by the High Court to the provisions of KTCP Act would render the existence of the Planning Authority like the appellant to futility. While on the one hand, the High Court has directed the first respondent to obtain permission from the Planning Authority under KTCP Act and that the appellant- Authority to scrutinise those plans only to ensure that they are in conformity with the Regulations etc. At the same time, the High Court is saying that the appellant-Authority cannot collect the betterment fees. In our considered view, such findings are contradictory to each other and cannot be sustained. 31. The High Court held that KIAD Act being a Special Act, the same will prevail over KTCP Act which is a General Act. KTCP Act is applicable to all the developmental activities in respect of any land coming within the area of Outline Development Plan (ODP) and the lands in question even though situated in industrial area comes within the area of ODP of the Planning Authority. The developmental activities over the said land have to be carried on only with the permission of the Authority and both the enactments have to be harmoniously construed so as to give effect to each of the Acts enacted by the State Government. 32. The question to be considered in this regard is whether KIAD Act is a special enactment and KTCP Act a general Act and whether the maxim Generalia Specialibus Non Derogant is applicable as held by the High Court. Rule of interpretation says that a statute is best interpreted when we know why it was enacted, which can be seen from the preamble of an Act. As discussed earlier, as per the preamble of the KIAD Act, it is an Act to make special provision for securing the establishment of industrial areas in the State of Karnataka and generally to promote the establishment and orderly development of industries therein. KTCP Act on the other hand, as we have pointed out earlier, was enacted to provide for the regulation of planned growth of land use and development and for the making and execution of town planning schemes in the State of Karnataka. Thus, considering the legislative intent of the two enactments, it is seen that there is nothing in the KIAD Act to destroy the authority of the Appellant which has its own assigned role to perform under the provisions of the KTCP Act. Considering the object and purpose for which both the Acts were enacted, there is no inconsistency or overlapping between the two enactments and the power of authorities constituted under the Acts. As the areas of operation of KIAD Act and KTCP Act are wholly different, there is no question of applicability of the maxim Generalia Specialibus Non Derogant. 33. Seeking grant of permission for construction of industrial buildings – Bulk Cement Terminal near Dodaballapur Railway Station, the first respondent submitted its application to the appellant-Authority on 08.06.1998. On that application for sanctioning the development plan consisting of the plan of storage, packing and administrative office buildings in the plot in question, the appellant-Authority vide order dated 17.09.1988 levied betterment charges, road charges etc. of Rs.1,48,29,173/- under various heads. In response to the same, the first respondent has sent its reply on 16.10.1998 inter alia stating that:- (i) since the first respondent has made payment to KIADB towards allotment of lands considering the first respondent as commercial establishment and levy of development at the rate of Rs.75/- per sq. mtr. may not be necessary; (ii) the construction put up by the first respondent are industrial buildings and not commercial establishments; and (iii) the first respondent is situated in Bengaluru Rural (North) District and it is not situated in Bengaluru Urban District attracting levy of such higher fee. 34. By careful perusal of the first respondents response dated 16.10.1998, it is seen that the first respondent has not challenged the jurisdiction of appellant-Authority to levy betterment charges and that the objections that the first respondent has raised were regarding the rate of betterment fee treating the first respondent as commercial establishment and the fact that they are situated in Bengaluru Rural (North) District and not in Bengaluru Urban District. When the first respondent has not raised the objection regarding the jurisdiction/competence of the appellant-Authority to levy betterment fee, the first respondent was not justified in turning around and challenging the powers of the appellant-Planning Authority to levy betterment charges. The High Court, in our view, did not properly consider the response of the first respondent and the High Court erred in saying that the role of KTCP is only to scrutinise the application to ensure that the plan is in conformity with the provisions of the KTCP Act and that it cannot levy the fee. 35. It is also pertinent to note that for obtaining sanction of their plan, the other allottees of industrial plots by KIADB have paid the betterment charges and also the road cess as demanded by the appellant-Authority. In this regard, the learned senior counsel for the appellant has drawn our attention to the communication from ITC Limited including the Pay Order dated 01.08.1997 for payment of betterment charges of Rs.3,01,71,600/-. When other allottees of industrial plots by KIADB have paid betterment charges and road cess for obtaining sanction of the plan, the first respondent cannot challenge the levy and contend that they are not liable to pay the betterment charges. 36. The High Court, in our view, ignored the important provisions of KTCP i.e. Sections 14 and 15 regarding the development act and the development activities including the industrial areas fall within the scope of the appellant-Authority and that the first respondent while obtaining the approval from the appellant-Authority for its plan is bound to pay the betterment charges, road cess and other charges as per the laws.
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0[ds]22. By careful reading of the provisions of both the Acts, it is seen that the object of KIAD Act is to make special provisions for securing the establishments of industrial areas in the State and to generally promote the establishment and orderly development of the industries. On the other hand, KTCP Act is for regulation of planned growth of land use and development and for the making and execution of town planning schemes in the State. Both the Acts i.e. KIAD Act and KTCP Act operate in different fields. Considering the objects of both the enactments, we find that there is no merit in the plea of the fifth respondent that once a land is acquired for the purpose of industries under the KIAD Act and made over to the Board, the use of the land becomes use for industrial purpose and no further permission for change of use of land by KTCP or any other authority is required23. Though heading of Section 18 of the KTCP Act isRecovery of a fee in certain cases of permission for change in the use of land or building, the levy of prescribed fee is not only for permission for change of land use but also for development of land or building as contemplated under Section 14A or Section 14B or Section 15 or Section 17 of the Act. As pointed out earlier, development is defined in Section) of KTCP Act which inter alia provides forin the use of any building or land and includes. From a combined reading of Section 18 with Section) of KTCP Act, it is clear that the levy of prescribed fee under Section 18 of the Act is not merely for change of land use but also for development of land or building. The language of expression used in Section 18 that permission for change of land used….. and development of land or building…. is to be interpreted in the light of the object of KTCP Act as enunciated in the Preamble of the ActWhen the government of Karnataka, Finance Department and other departments and also the Commissioner for Industrial Development and other departments have participated in the abovesaid meeting and were all parties to the above decisions, it is not open to KIADB to resile from the minutes and put forth claim contrarily. Having been a party to the discussion in the meeting held on 04.12.1999, the State of Karnataka is also not justified in contending that the lands in question are included in the industrial area declared by the State Government and hence, not bound to pay the development fee under Section 18 of the Act27. Section 14 read with Section 18 of the KTCP Act clearly connotes that the Planning Authority is entrusted with the function of granting licence to put up construction on the land including the land acquired and allotted by the Board under KIAD Act. This is also clear from the provisions contained in theM of the KTCP Act which declares that the provisions of the said Act and the Rules, Regulations ands made thereunder shall have effect notwithstanding anything inconsistent contained in any other law. There is nothing in the provisions of this Act to exclude or exempt the lands which are covered by the KIAD Act29. The High Court, on the one hand, took the view that Sections 14, 15 and 18 of KTCP Act are not applicable to the industrial area which is governed by KIAD Act. On the other hand, the High Court held that for compliance of the provisions of Sections 14 and 15 of the KTCP Act for all the establishment of the industrial unit, the allottee has to seek approval of the Planning Authority constituted under KTCP Act and KTCP is to scrutinise the plan and other documents so as to ensure that the establishment of the industrial unit by the allottee in the industrial area is in conformity with the Zonal Regulations etc; but KTCP is not to levy betterment fee. The findings of the High Court are30. As discussed earlier, the Planning Authority constituted under KTCP Act is entrusted with the functions of granting approval for any development on the land within its jurisdiction including the land acquired and allotted by the Board under KIAD Act. Per contra, the enactment of KIAD Act is to make special provision for securing the establishment of the industrial area in the State and for that purpose to establish Industrial Areas Development Board. The provisions of both the Acts make the intention of the legislature very clear. As rightly submitted by the learned senior counsel for the appellant that if there are two possible interpretations of an enactment, one should avoid the construction which would reduce the legislation to futility and should rather accept the broader interpretation. A statute is designed to be workable and the interpretation thereof by the court should be to secure that object. In so far as the industrial area allotted by KIADB, the interpretation given by the High Court to the provisions of KTCP Act would render the existence of the Planning Authority like the appellant to futility. While on the one hand, the High Court has directed the first respondent to obtain permission from the Planning Authority under KTCP Act and that the appellantAuthority to scrutinise those plans only to ensure that they are in conformity with the Regulations etc. At the same time, the High Court is saying that they cannot collect the betterment fees. In our considered view, such findings are contradictory to each other and cannot be sustained31. The High Court held that KIAD Act being a Special Act, the same will prevail over KTCP Act which is a General Act. KTCP Act is applicable to all the developmental activities in respect of any land coming within the area of Outline Development Plan (ODP) and the lands in question even though situated in industrial area comes within the area of ODP of the Planning Authority. The developmental activities over the said land have to be carried on only with the permission of the Authority and both the enactments have to be harmoniously construed so as to give effect to each of the Acts enacted by the State Government32. The question to be considered in this regard is whether KIAD Act is a special enactment and KTCP Act a general Act and whether the maxim Generalia Specialibus Non Derogant is applicable as held by the High Court. Rule of interpretation says that a statute is best interpreted when we know why it was enacted, which can be seen from the preamble of an Act. As discussed earlier, as per the preamble of the KIAD Act, it is an Act to make special provision for securing the establishment of industrial areas in the State of Karnataka and generally to promote the establishment and orderly development of industries therein. KTCP Act on the other hand, as we have pointed out earlier, was enacted to provide for the regulation of planned growth of land use and development and for the making and execution of town planning schemes in the State of Karnataka. Thus, considering the legislative intent of the two enactments, it is seen that there is nothing in the KIAD Act to destroy the authority of the Appellant which has its own assigned role to perform under the provisions of the KTCP Act. Considering the object and purpose for which both the Acts were enacted, there is no inconsistency or overlapping between the two enactments and the power of authorities constituted under the Acts. As the areas of operation of KIAD Act and KTCP Act are wholly different, there is no question of applicability of the maxim Generalia Specialibus Non Derogant33. Seeking grant of permission for construction of industrial buildings – Bulk Cement Terminal near Dodaballapur Railway Station, the first respondent submitted its application to they on 08.06.1998. On that application for sanctioning the development plan consisting of the plan of storage, packing and administrative office buildings in the plot in question, they vide order dated 17.09.1988 levied betterment charges, road charges etc. of Rs.1,48,29,173/under various heads. In response to the same, the first respondent has sent its reply on 16.10.1998 inter alia stating that:(i) since the first respondent has made payment to KIADB towards allotment of lands considering the first respondent as commercial establishment and levy of development at the rate of Rs.75/per sq. mtr. may not be necessary; (ii) the construction put up by the first respondent are industrial buildings and not commercial establishments; and (iii) the first respondent is situated in Bengaluru Rural (North) District and it is not situated in Bengaluru Urban District attracting levy of such higher fee34. By careful perusal of the first respondents response dated 16.10.1998, it is seen that the first respondent has not challenged the jurisdiction ofy to levy betterment charges and that the objections that the first respondent has raised were regarding the rate of betterment fee treating the first respondent as commercial establishment and the fact that they are situated in Bengaluru Rural (North) District and not in Bengaluru Urban District. When the first respondent has not raised the objection regarding the jurisdiction/competence of they to levy betterment fee, the first respondent was not justified in turning around and challenging the powers of theg Authority to levy betterment charges. The High Court, in our view, did not properly consider the response of the first respondent and the High Court erred in saying that the role of KTCP is only to scrutinise the application to ensure that the plan is in conformity with the provisions of the KTCP Act and that it cannot levy the fee35. It is also pertinent to note that for obtaining sanction of their plan, the other allottees of industrial plots by KIADB have paid the betterment charges and also the road cess as demanded by the. In this regard, the learned senior counsel for the appellant has drawn our attention to the communication from ITC Limited including the Pay Order dated 01.08.1997 for payment of betterment charges of Rs.. When other allottees of industrial plots by KIADB have paid betterment charges and road cess for obtaining sanction of the plan, the first respondent cannot challenge the levy and contend that they are not liable to pay the betterment charges36. The High Court, in our view, ignored the important provisions of KTCP i.e. Sections 14 and 15 regarding the development act and the development activities including the industrial areas fall within the scope of they and that the first respondent while obtaining the approval from they for its plan is bound to pay the betterment charges, road cess and other charges as per the laws.
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### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
and the interpretation thereof by the court should be to secure that object. In so far as the industrial area allotted by KIADB, the interpretation given by the High Court to the provisions of KTCP Act would render the existence of the Planning Authority like the appellant to futility. While on the one hand, the High Court has directed the first respondent to obtain permission from the Planning Authority under KTCP Act and that the appellant- Authority to scrutinise those plans only to ensure that they are in conformity with the Regulations etc. At the same time, the High Court is saying that the appellant-Authority cannot collect the betterment fees. In our considered view, such findings are contradictory to each other and cannot be sustained. 31. The High Court held that KIAD Act being a Special Act, the same will prevail over KTCP Act which is a General Act. KTCP Act is applicable to all the developmental activities in respect of any land coming within the area of Outline Development Plan (ODP) and the lands in question even though situated in industrial area comes within the area of ODP of the Planning Authority. The developmental activities over the said land have to be carried on only with the permission of the Authority and both the enactments have to be harmoniously construed so as to give effect to each of the Acts enacted by the State Government. 32. The question to be considered in this regard is whether KIAD Act is a special enactment and KTCP Act a general Act and whether the maxim Generalia Specialibus Non Derogant is applicable as held by the High Court. Rule of interpretation says that a statute is best interpreted when we know why it was enacted, which can be seen from the preamble of an Act. As discussed earlier, as per the preamble of the KIAD Act, it is an Act to make special provision for securing the establishment of industrial areas in the State of Karnataka and generally to promote the establishment and orderly development of industries therein. KTCP Act on the other hand, as we have pointed out earlier, was enacted to provide for the regulation of planned growth of land use and development and for the making and execution of town planning schemes in the State of Karnataka. Thus, considering the legislative intent of the two enactments, it is seen that there is nothing in the KIAD Act to destroy the authority of the Appellant which has its own assigned role to perform under the provisions of the KTCP Act. Considering the object and purpose for which both the Acts were enacted, there is no inconsistency or overlapping between the two enactments and the power of authorities constituted under the Acts. As the areas of operation of KIAD Act and KTCP Act are wholly different, there is no question of applicability of the maxim Generalia Specialibus Non Derogant. 33. Seeking grant of permission for construction of industrial buildings – Bulk Cement Terminal near Dodaballapur Railway Station, the first respondent submitted its application to the appellant-Authority on 08.06.1998. On that application for sanctioning the development plan consisting of the plan of storage, packing and administrative office buildings in the plot in question, the appellant-Authority vide order dated 17.09.1988 levied betterment charges, road charges etc. of Rs.1,48,29,173/- under various heads. In response to the same, the first respondent has sent its reply on 16.10.1998 inter alia stating that:- (i) since the first respondent has made payment to KIADB towards allotment of lands considering the first respondent as commercial establishment and levy of development at the rate of Rs.75/- per sq. mtr. may not be necessary; (ii) the construction put up by the first respondent are industrial buildings and not commercial establishments; and (iii) the first respondent is situated in Bengaluru Rural (North) District and it is not situated in Bengaluru Urban District attracting levy of such higher fee. 34. By careful perusal of the first respondents response dated 16.10.1998, it is seen that the first respondent has not challenged the jurisdiction of appellant-Authority to levy betterment charges and that the objections that the first respondent has raised were regarding the rate of betterment fee treating the first respondent as commercial establishment and the fact that they are situated in Bengaluru Rural (North) District and not in Bengaluru Urban District. When the first respondent has not raised the objection regarding the jurisdiction/competence of the appellant-Authority to levy betterment fee, the first respondent was not justified in turning around and challenging the powers of the appellant-Planning Authority to levy betterment charges. The High Court, in our view, did not properly consider the response of the first respondent and the High Court erred in saying that the role of KTCP is only to scrutinise the application to ensure that the plan is in conformity with the provisions of the KTCP Act and that it cannot levy the fee. 35. It is also pertinent to note that for obtaining sanction of their plan, the other allottees of industrial plots by KIADB have paid the betterment charges and also the road cess as demanded by the appellant-Authority. In this regard, the learned senior counsel for the appellant has drawn our attention to the communication from ITC Limited including the Pay Order dated 01.08.1997 for payment of betterment charges of Rs.3,01,71,600/-. When other allottees of industrial plots by KIADB have paid betterment charges and road cess for obtaining sanction of the plan, the first respondent cannot challenge the levy and contend that they are not liable to pay the betterment charges. 36. The High Court, in our view, ignored the important provisions of KTCP i.e. Sections 14 and 15 regarding the development act and the development activities including the industrial areas fall within the scope of the appellant-Authority and that the first respondent while obtaining the approval from the appellant-Authority for its plan is bound to pay the betterment charges, road cess and other charges as per the laws.
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0
### Explanation:
reduce the legislation to futility and should rather accept the broader interpretation. A statute is designed to be workable and the interpretation thereof by the court should be to secure that object. In so far as the industrial area allotted by KIADB, the interpretation given by the High Court to the provisions of KTCP Act would render the existence of the Planning Authority like the appellant to futility. While on the one hand, the High Court has directed the first respondent to obtain permission from the Planning Authority under KTCP Act and that the appellantAuthority to scrutinise those plans only to ensure that they are in conformity with the Regulations etc. At the same time, the High Court is saying that they cannot collect the betterment fees. In our considered view, such findings are contradictory to each other and cannot be sustained31. The High Court held that KIAD Act being a Special Act, the same will prevail over KTCP Act which is a General Act. KTCP Act is applicable to all the developmental activities in respect of any land coming within the area of Outline Development Plan (ODP) and the lands in question even though situated in industrial area comes within the area of ODP of the Planning Authority. The developmental activities over the said land have to be carried on only with the permission of the Authority and both the enactments have to be harmoniously construed so as to give effect to each of the Acts enacted by the State Government32. The question to be considered in this regard is whether KIAD Act is a special enactment and KTCP Act a general Act and whether the maxim Generalia Specialibus Non Derogant is applicable as held by the High Court. Rule of interpretation says that a statute is best interpreted when we know why it was enacted, which can be seen from the preamble of an Act. As discussed earlier, as per the preamble of the KIAD Act, it is an Act to make special provision for securing the establishment of industrial areas in the State of Karnataka and generally to promote the establishment and orderly development of industries therein. KTCP Act on the other hand, as we have pointed out earlier, was enacted to provide for the regulation of planned growth of land use and development and for the making and execution of town planning schemes in the State of Karnataka. Thus, considering the legislative intent of the two enactments, it is seen that there is nothing in the KIAD Act to destroy the authority of the Appellant which has its own assigned role to perform under the provisions of the KTCP Act. Considering the object and purpose for which both the Acts were enacted, there is no inconsistency or overlapping between the two enactments and the power of authorities constituted under the Acts. As the areas of operation of KIAD Act and KTCP Act are wholly different, there is no question of applicability of the maxim Generalia Specialibus Non Derogant33. Seeking grant of permission for construction of industrial buildings – Bulk Cement Terminal near Dodaballapur Railway Station, the first respondent submitted its application to they on 08.06.1998. On that application for sanctioning the development plan consisting of the plan of storage, packing and administrative office buildings in the plot in question, they vide order dated 17.09.1988 levied betterment charges, road charges etc. of Rs.1,48,29,173/under various heads. In response to the same, the first respondent has sent its reply on 16.10.1998 inter alia stating that:(i) since the first respondent has made payment to KIADB towards allotment of lands considering the first respondent as commercial establishment and levy of development at the rate of Rs.75/per sq. mtr. may not be necessary; (ii) the construction put up by the first respondent are industrial buildings and not commercial establishments; and (iii) the first respondent is situated in Bengaluru Rural (North) District and it is not situated in Bengaluru Urban District attracting levy of such higher fee34. By careful perusal of the first respondents response dated 16.10.1998, it is seen that the first respondent has not challenged the jurisdiction ofy to levy betterment charges and that the objections that the first respondent has raised were regarding the rate of betterment fee treating the first respondent as commercial establishment and the fact that they are situated in Bengaluru Rural (North) District and not in Bengaluru Urban District. When the first respondent has not raised the objection regarding the jurisdiction/competence of they to levy betterment fee, the first respondent was not justified in turning around and challenging the powers of theg Authority to levy betterment charges. The High Court, in our view, did not properly consider the response of the first respondent and the High Court erred in saying that the role of KTCP is only to scrutinise the application to ensure that the plan is in conformity with the provisions of the KTCP Act and that it cannot levy the fee35. It is also pertinent to note that for obtaining sanction of their plan, the other allottees of industrial plots by KIADB have paid the betterment charges and also the road cess as demanded by the. In this regard, the learned senior counsel for the appellant has drawn our attention to the communication from ITC Limited including the Pay Order dated 01.08.1997 for payment of betterment charges of Rs.. When other allottees of industrial plots by KIADB have paid betterment charges and road cess for obtaining sanction of the plan, the first respondent cannot challenge the levy and contend that they are not liable to pay the betterment charges36. The High Court, in our view, ignored the important provisions of KTCP i.e. Sections 14 and 15 regarding the development act and the development activities including the industrial areas fall within the scope of they and that the first respondent while obtaining the approval from they for its plan is bound to pay the betterment charges, road cess and other charges as per the laws.
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PUNEET SHARMA & ORS. ETC Vs. HIMACHAL PRADESH STATE ELECTRICITY BOARD LTD. & ANR. ETC
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amendments operative retroactively, despite their enforcement prospectively) has been held in several previous judgments of this court. In Zile Singh v. State of Haryana (2004) 8 SCC 1 this Court examined the various authorities on statutory interpretation and concluded: (SCC pp. 8-9, paras 13-14) 13. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the Rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only-nova constitutiofuturisformamimponeredebet non praeteritis-a new law ought to regulate what is to follow, not the past. (See Principles of Statutory Interpretation by Justice G.P. Singh, 9th Edn., 2004 at page 438.) It is not necessary that an express provision be made to make a statute retrospective and the presumption against retrospectivity may be rebutted by necessary implication especially in a case where the new law is made to cure an acknowledged evil for the benefit of the community as a whole (ibid., page 440). 14. The presumption against retrospective operation is not applicable to declaratory statutes.... In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is to explain an earlier Act, it would be without object unless construed retrospectively. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended.... An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect (ibid., pp. 468-69). 34. In Vijay v. State of Maharashtra (2006) 6 SCC 289, this court held as follows: 12. The appellant was elected in terms of the provisions of a statute. The right to be elected was created by a statute and, thus, can be taken away by a statute. It is now well settled that when a literal reading of the provision giving retrospective effect does not produce absurdity or anomaly, the same would not be construed to be only prospective. The negation is not a rigid rule and varies with the intention and purport of the legislature, but to apply it in such a case is a doctrine of fairness. When a law is enacted for the benefit of the community as a whole, even in the absence of a provision, the statute may be held to be retrospective in nature. The appellant does not and cannot question the competence of the legislature in this behalf. 35. Likewise, in Manish Kumar v Union of India (2019) 8 SCC 416, it was held that: Declaratory, clarificatory or curative Statutes are allowed to hold sway in the past. The very nature of the said laws involve the aspect of public interest which requires sovereign Legislature to remove defects, clarify aspects which create doubt. The declaratory law again has the effect of the legislative intention being made clear. It may not be apposite in the case of these Statutes to paint them with the taint of retrospectivity. 36. It would also be relevant to notice that in the appeal, it has been specifically averred that the HPSEB has been making contractual appointments from amongst degree holders in the cadre of Junior Engineers, and that an order was issued upon the recommendation of the Screening Committee, which through its meeting held on 11.04.2018 had cleared the regularization of 28 such candidates. These degree holders are equivalent to Junior Engineers, and had been working for periods ranging between 4 to 6 years. A copy of that order has been produced as Annexure P-10 in the Special Leave Petition.SLP (C) 10533-37 of 2020. 37. The considerations which weighed with this court in the previous decisions i.e. P.M. Latha, Yogesh Kumar, Anita (Supra) were quite different from the facts of this case. This courts conclusions that the prescription of a specific qualification, excluding what is generally regarded as a higher qualification can apply to certain categories of posts. Thus, in Latha and Yogesh Kumar as well as Anita (supra) those possessing degrees or post-graduation or B.Ed. degrees, were not considered eligible for the post of primary or junior teacher. In a similar manner, for Technician-III or lower post, the equivalent qualification for the post of Junior Engineer i.e. diploma holders were deemed to have been excluded, in Zahoor Ahmed Rather (supra). This court is cognizant of the fact that in Anita as well as Zahoor (supra) the stipulation in Jyoti (supra) which enabled consideration of candidates with higher qualifications was deemed to be a distinguishing ground. No such stipulation exists in the HPSEB Rules. Yet, of material significance is the fact that the higher post of Assistant Engineer (next in hierarchy to Junior Engineer) has nearly 2/3rds (64%) promotional quota. Amongst these individuals, those who held degrees before appointment as a Junior Engineers are entitled for consideration in a separate and distinct sub-quota, provided they function as a Junior Engineer continuously for a prescribed period. This salient aspect cannot be overlooked; it only shows the intent of the rule makers not to exclude degree holders from consideration for the lower post of Junior Engineers. 38. As noticed previously, in addition to the above considerations, an amendment to the rules was made on 03.06.2020 declaring that those with higher qualifications are also entitled to apply or be considered for appointment. This amendment was brought in to clear all doubts and controversies and, in that sense, the amending provisions should be deemed to have been inserted from inception.
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1[ds]22. The question whether the stipulation or prescription of the particular academic qualification excludes an applicant who possesses what is termed as a higher qualification, from their candidature to the concerned post has often arisen for consideration by this Court. In P.M. Latha & Anr. v. State Of Kerala & Ors.(2003) 3 SCC 541, the issue which arose for consideration was whether, for primary class teachers, the prescribed (and advertised) qualification Trained Teacher Certificates (TTC), included those who held B.Ed. degrees. This court was forthright in holding that the B.Ed. qualification could not be considered as a higher qualification than the TTC and that the TTC qualification was given to teachers especially trained to teach small children primary classes, whereas those with B.Ed. were trained to impart education to students of higher classes. A similar view was expressed in Yogesh Kumar & ors v. Government of NCT Delhi & Ors (2003) 3 SCC 548 vis-a-vis the same stipulation i.e., B.Ed. and TTC qualifications. The Court further held in Yogesh Kumar (supra) that a specialized training given to teachers for teaching small children at primary level cannot be compared with training given for awarding B.Ed. degree.23. The next judgment is Jyoti K.K. & Ors. v. Kerala Public Service Commission & Ors. (2010) 15 SCC 596, where the issue was whether degree holders could be considered for the post of Sub-Engineer (Electrical) in the Kerala State Electricity Board, which had prescribed diploma in Electrical Engineering or SSLC or its equivalent as the eligibility criteria. This Court took into consideration Rule 10A and inter alia observed as follows:6. Rule 10(a)(ii) reads as follows:10. (a)(ii) Notwithstanding anything contained in these Rules or in the Special Rules, the qualifications recognised by executive orders or standing orders of Government as equivalent to a qualification specified for a post in the Special Rules and such of those higher qualifications which presuppose the acquisition of the lower qualification prescribed for the post shall also be sufficient for the post.7. It is no doubt true, as stated by the High Court that when a qualification has been set out under the relevant Rules, the same cannot be in any manner whittled down and a different qualification cannot be adopted. The High Court is also justified in stating that the higher qualification must clearly indicate or presuppose the acquisition of the lower qualification prescribed for that post in order to attract that part of the Rule to the effect that such of those higher qualifications which presuppose the acquisition of the lower qualifications prescribed for the post shall also be sufficient for the post. If a person has acquired higher qualifications in the same Faculty, such qualifications can certainly be stated to presuppose the acquisition of the lower qualifications prescribed for the post. In this case it may not be necessary to seek far.8. Under the relevant Rules, for the post of Assistant Engineer, degree in Electrical Engineering of Kerala University or other equivalent qualification recognised or equivalent thereto has been prescribed. For a higher post when a direct recruitment has to be held, the qualification that has to be obtained, obviously gives an indication that such qualification is definitely higher qualification than what is prescribed for the lower post, namely, the post of Sub-Engineer. In that view of the matter the qualification of degree in Electrical Engineering presupposes the acquisition of the lower qualification of diploma in that subject prescribed for the post, shall be considered to be sufficient for that post.9. In the event the Government is of the view that only diploma-holders should have applied to post of Sub-Engineers but not all those who possess higher qualifications, either this Rule should have excluded in respect of candidates who possess higher qualifications or the position should have been made clear that degree-holder shall not be eligible to apply for such post. When that position is not clear but on the other hand the Rules do not disqualify per se the holders of higher qualifications in the same Faculty, it becomes clear that the Rule could be understood in an appropriate manner as stated above. In that view of the matter the order [Jyothi K.K. v. Kerala Public Service Commission, Original Petition No. 9602 of 1998, order dated 30-3- 2000 (Ker)] of the High Court cannot be sustained. In this case we are not concerned with the question whether all those who possess such qualifications could have applied or not. When statutory Rules have been published and those Rules are applicable, it presupposes that everyone concerned with such appointments will be aware of such Rules or make himself aware of the Rules before making appropriate applications. The High Court, therefore, is not justified in holding that recruitment of the appellants would amount to fraud on the public.24. It is evident therefore, that this Court was of the opinion that for the post of Sub-Engineer (which can be termed as comparable to the post of Junior Engineer in the present case), the Kerala State Electricity Board felt that those possessing degree as well could be considered. This Court upheld the contention.26. In Zahoor Ahmad Rather (supra) the post in question was Technician-IIIin the Power Development Department in the State of Jammu and Kashmir. The relevant stipulation with respect to qualification was Matric with ITI in the relevant trade. The appellants held diploma in Electrical Engineering and were included in the list of disqualified candidates. This resulted in litigation which ultimately culminated in the judgment of this court. This court held in its judgment (2019) 2 SCC 404 :Under the above provisions as well as in the advertisement which was issued by the Board, every candidate must possess the prescribed academic/professional/technical qualification and must fulfil all other eligibility conditions. The prescribed qualifications for the post of Technician III in the Power Development Department is a Matric with ITI in the relevant trade. The Board at its 116th meeting took notice of the fact that in some districts, the interviews had been conducted for candidates with a Diploma in Electrical Engineering while in other districts candidates with a diploma had not been considered to be eligible for the post of Technician III. Moreover, candidates with an ITI in diverse trades had also been interviewed for the post. The Board resolved at its meeting that only an ITI in the relevant trade, namely, the Electrical trade is the prescribed qualification specified in the advertisement.27. Thereafter, the Court discussed the previous rulings in P.M. Latha, Jyoti K.K. and Anita (supra), then concluded that the candidature of the diploma holders was correctly rejected and held as follows:26. We are in respectful agreement with the interpretation which has been placed on the judgment in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] in the subsequent decision in Anita [State of Punjab v. Anita, (2015) 2 SCC 170 : (2015) 1 SCC (L&S) 329] . The decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] turned on the provisions of Rule 10(a)(ii). Absent such a rule, it would not be permissible to draw an inference that a higher qualification necessarily presupposes the acquisition of another, albeit lower, qualification. The prescription of qualifications for a post is a matter of recruitment policy. The State as the employer is entitled to prescribe the qualifications as a condition of eligibility. It is no part of the role or function of judicial review to expand upon the ambit of the prescribed qualifications. Similarly, equivalence of a qualification is not a matter which can be determined in exercise of the power of judicial review. Whether a particular qualification should or should not be regarded as equivalent is a matter for the State, as the recruiting authority, to determine. The decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] turned on a specific statutory rule under which the holding of a higher qualification could presuppose the acquisition of a lower qualification. The absence of such a rule in the present case makes a crucial difference to the ultimate outcome. In this view of the matter, the Division Bench [Imtiyaz Ahmad v. Zahoor Ahmad Rather, LPA (SW) No. 135 of 2017, decided on 12-10-2017 (J&K)] of the High Court was justified in reversing the judgment [Zahoor Ahmad Rather v. State of J&K, 2017 SCC OnLine J&K 936] of the learned Single Judge and in coming to the conclusion that the appellants did not meet the prescribed qualifications. We find no error in the decision [Imtiyaz Ahmad v. Zahoor Ahmad Rather, LPA (SW) No. 135 of 2017, decided on 12-10-2017 (J&K)] of the Division Bench.27. While prescribing the qualifications for a post, the State, as employer, may legitimately bear in mind several features including the nature of the job, the aptitudes requisite for the efficient discharge of duties, the functionality of a qualification and the content of the course of studies which leads up to the acquisition of a qualification. The State is entrusted with the authority to assess the needs of its public services. Exigencies of administration, it is trite law, fall within the domain of administrative decision-making. The State as a public employer may well take into account social perspectives that require the creation of job opportunities across the societal structure. All these are essentially matters of policy. Judicial review must tread warily. That is why the decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] must be understood in the context of a specific statutory rule under which the holding of a higher qualification which presupposes the acquisition of a lower qualification was considered to be sufficient for the post. It was in the context of specific rule that the decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] turned.28. It would be also useful to notice a later judgment of this court, in Chief Manager, Punjab National Bank and Another v Anit Kumar Das 2020 SCC On Line SC 897 where the issue was, whether for the post of peon in the appellant Bank, a degree holder (graduate) could be appointed, given the conscious decision of the employer, that only those who held 10+2 pass qualifications would be considered and those with graduation qualification could not be considered. This court held that the appointment of the respondent, who was a graduate, after he suppressed the fact that he held a degree, and did not disclose it, was unsupportable. In this context, it was observed that as to what qualifications are applicable to what class of posts, is a matter of discretion to be exercised by the employer, which the courts would be slow to interdict. This decision too supports the conclusions in the present case, since the employer, HPSEB asserts that it considers degree holders eligible for appointment to the post of JE.29. In the present case, what is evident from the rules is that direct recruitment to the post of JEs in HPSEB is to the extent of 72%. Undoubtedly, eligibility is amongst those who passed in matriculation or 10+2 or its equivalent qualification. However, this Court is of the opinion that the diploma holders contention that the minimum qualification is matriculation and that the technical qualification is diploma is incorrect. The minimum qualification for the post cannot be deemed to be only matriculation but rather that only such of those matriculates, or 10+2 pass students, who are diploma holders would be eligible. The term with in this category has to be read as conjunctive.30. As far as the merits of the main question i.e. whether degree holders too can apply for the post of JEs, a close examination of the rules shows that a lions share of the posts at the JE level is set apart for direct recruitment. However, when it is at the level of the higher post i.e. Assistant Engineer which is a promotional post direct recruitment is only to the extent of 36%. Of the balance 64%, various sub-quotas have been stipulated for feeder cadres; the largest percentage being for Junior Engineers. For a long time, even on the date of the advertisement, two distinct quotas (of 5%) had been set apart for promotion of Junior Engineers holding degree qualifications in the concerned subject.However, the rules have to be considered as a whole. So viewed, the two sub-quotas are:(1) 5% enabling those diploma holders who acquire degree qualifications during service as Junior Engineers; and(2) 5% enabling among those who hold degrees before joining as Junior Engineers;32. The latter (2) conclusively establishes that what the rule making authority undoubtedly had in mind was that degree holders too could compete for the position of JEs as individuals holding equivalent or higher qualifications. If such interpretation were not given, there would be no meaning in the 5% sub-quota set apart for those who were degree holders before joining as Junior Engineers - in terms of the recruitment rules as existing.33. The courts opinion is fortified by the latest amendment brought about on 03.06.2020. This clarifies beyond doubt that even for the post of Junior Engineers, those individuals holding higher qualifications are eligible to compete. In the opinion of this Court, though the amending rules were brought into force prospectively, nevertheless, being clarificatory, they apply to the recruitment that is the subject matter of the present controversy. Such a position (i.e. clarificatory amendments operative retroactively, despite their enforcement prospectively) has been held in several previous judgments of this court. In Zile Singh v. State of Haryana (2004) 8 SCC 1 this Court examined the various authorities on statutory interpretation and concluded: (SCC pp. 8-9, paras 13-14)13. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the Rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only-nova constitutiofuturisformamimponeredebet non praeteritis-a new law ought to regulate what is to follow, not the past. (See Principles of Statutory Interpretation by Justice G.P. Singh, 9th Edn., 2004 at page 438.) It is not necessary that an express provision be made to make a statute retrospective and the presumption against retrospectivity may be rebutted by necessary implication especially in a case where the new law is made to cure an acknowledged evil for the benefit of the community as a whole (ibid., page 440).14. The presumption against retrospective operation is not applicable to declaratory statutes.... In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is to explain an earlier Act, it would be without object unless construed retrospectively. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended.... An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect (ibid., pp. 468-69).34. In Vijay v. State of Maharashtra (2006) 6 SCC 289, this court held as follows:12. The appellant was elected in terms of the provisions of a statute. The right to be elected was created by a statute and, thus, can be taken away by a statute. It is now well settled that when a literal reading of the provision giving retrospective effect does not produce absurdity or anomaly, the same would not be construed to be only prospective. The negation is not a rigid rule and varies with the intention and purport of the legislature, but to apply it in such a case is a doctrine of fairness. When a law is enacted for the benefit of the community as a whole, even in the absence of a provision, the statute may be held to be retrospective in nature. The appellant does not and cannot question the competence of the legislature in this behalf.36. It would also be relevant to notice that in the appeal, it has been specifically averred that the HPSEB has been making contractual appointments from amongst degree holders in the cadre of Junior Engineers, and that an order was issued upon the recommendation of the Screening Committee, which through its meeting held on 11.04.2018 had cleared the regularization of 28 such candidates. These degree holders are equivalent to Junior Engineers, and had been working for periods ranging between 4 to 6 years. A copy of that order has been produced as Annexure P-10 in the Special Leave Petition.SLP (C) 10533-37 of 2020.37. The considerations which weighed with this court in the previous decisions i.e. P.M. Latha, Yogesh Kumar, Anita (Supra) were quite different from the facts of this case. This courts conclusions that the prescription of a specific qualification, excluding what is generally regarded as a higher qualification can apply to certain categories of posts. Thus, in Latha and Yogesh Kumar as well as Anita (supra) those possessing degrees or post-graduation or B.Ed. degrees, were not considered eligible for the post of primary or junior teacher. In a similar manner, for Technician-III or lower post, the equivalent qualification for the post of Junior Engineer i.e. diploma holders were deemed to have been excluded, in Zahoor Ahmed Rather (supra). This court is cognizant of the fact that in Anita as well as Zahoor (supra) the stipulation in Jyoti (supra) which enabled consideration of candidates with higher qualifications was deemed to be a distinguishing ground. No such stipulation exists in the HPSEB Rules. Yet, of material significance is the fact that the higher post of Assistant Engineer (next in hierarchy to Junior Engineer) has nearly 2/3rds (64%) promotional quota. Amongst these individuals, those who held degrees before appointment as a Junior Engineers are entitled for consideration in a separate and distinct sub-quota, provided they function as a Junior Engineer continuously for a prescribed period. This salient aspect cannot be overlooked; it only shows the intent of the rule makers not to exclude degree holders from consideration for the lower post of Junior Engineers.38. As noticed previously, in addition to the above considerations, an amendment to the rules was made on 03.06.2020 declaring that those with higher qualifications are also entitled to apply or be considered for appointment. This amendment was brought in to clear all doubts and controversies and, in that sense, the amending provisions should be deemed to have been inserted from inception.
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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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amendments operative retroactively, despite their enforcement prospectively) has been held in several previous judgments of this court. In Zile Singh v. State of Haryana (2004) 8 SCC 1 this Court examined the various authorities on statutory interpretation and concluded: (SCC pp. 8-9, paras 13-14) 13. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the Rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only-nova constitutiofuturisformamimponeredebet non praeteritis-a new law ought to regulate what is to follow, not the past. (See Principles of Statutory Interpretation by Justice G.P. Singh, 9th Edn., 2004 at page 438.) It is not necessary that an express provision be made to make a statute retrospective and the presumption against retrospectivity may be rebutted by necessary implication especially in a case where the new law is made to cure an acknowledged evil for the benefit of the community as a whole (ibid., page 440). 14. The presumption against retrospective operation is not applicable to declaratory statutes.... In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is to explain an earlier Act, it would be without object unless construed retrospectively. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended.... An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect (ibid., pp. 468-69). 34. In Vijay v. State of Maharashtra (2006) 6 SCC 289, this court held as follows: 12. The appellant was elected in terms of the provisions of a statute. The right to be elected was created by a statute and, thus, can be taken away by a statute. It is now well settled that when a literal reading of the provision giving retrospective effect does not produce absurdity or anomaly, the same would not be construed to be only prospective. The negation is not a rigid rule and varies with the intention and purport of the legislature, but to apply it in such a case is a doctrine of fairness. When a law is enacted for the benefit of the community as a whole, even in the absence of a provision, the statute may be held to be retrospective in nature. The appellant does not and cannot question the competence of the legislature in this behalf. 35. Likewise, in Manish Kumar v Union of India (2019) 8 SCC 416, it was held that: Declaratory, clarificatory or curative Statutes are allowed to hold sway in the past. The very nature of the said laws involve the aspect of public interest which requires sovereign Legislature to remove defects, clarify aspects which create doubt. The declaratory law again has the effect of the legislative intention being made clear. It may not be apposite in the case of these Statutes to paint them with the taint of retrospectivity. 36. It would also be relevant to notice that in the appeal, it has been specifically averred that the HPSEB has been making contractual appointments from amongst degree holders in the cadre of Junior Engineers, and that an order was issued upon the recommendation of the Screening Committee, which through its meeting held on 11.04.2018 had cleared the regularization of 28 such candidates. These degree holders are equivalent to Junior Engineers, and had been working for periods ranging between 4 to 6 years. A copy of that order has been produced as Annexure P-10 in the Special Leave Petition.SLP (C) 10533-37 of 2020. 37. The considerations which weighed with this court in the previous decisions i.e. P.M. Latha, Yogesh Kumar, Anita (Supra) were quite different from the facts of this case. This courts conclusions that the prescription of a specific qualification, excluding what is generally regarded as a higher qualification can apply to certain categories of posts. Thus, in Latha and Yogesh Kumar as well as Anita (supra) those possessing degrees or post-graduation or B.Ed. degrees, were not considered eligible for the post of primary or junior teacher. In a similar manner, for Technician-III or lower post, the equivalent qualification for the post of Junior Engineer i.e. diploma holders were deemed to have been excluded, in Zahoor Ahmed Rather (supra). This court is cognizant of the fact that in Anita as well as Zahoor (supra) the stipulation in Jyoti (supra) which enabled consideration of candidates with higher qualifications was deemed to be a distinguishing ground. No such stipulation exists in the HPSEB Rules. Yet, of material significance is the fact that the higher post of Assistant Engineer (next in hierarchy to Junior Engineer) has nearly 2/3rds (64%) promotional quota. Amongst these individuals, those who held degrees before appointment as a Junior Engineers are entitled for consideration in a separate and distinct sub-quota, provided they function as a Junior Engineer continuously for a prescribed period. This salient aspect cannot be overlooked; it only shows the intent of the rule makers not to exclude degree holders from consideration for the lower post of Junior Engineers. 38. As noticed previously, in addition to the above considerations, an amendment to the rules was made on 03.06.2020 declaring that those with higher qualifications are also entitled to apply or be considered for appointment. This amendment was brought in to clear all doubts and controversies and, in that sense, the amending provisions should be deemed to have been inserted from inception.
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set apart for those who were degree holders before joining as Junior Engineers - in terms of the recruitment rules as existing.33. The courts opinion is fortified by the latest amendment brought about on 03.06.2020. This clarifies beyond doubt that even for the post of Junior Engineers, those individuals holding higher qualifications are eligible to compete. In the opinion of this Court, though the amending rules were brought into force prospectively, nevertheless, being clarificatory, they apply to the recruitment that is the subject matter of the present controversy. Such a position (i.e. clarificatory amendments operative retroactively, despite their enforcement prospectively) has been held in several previous judgments of this court. In Zile Singh v. State of Haryana (2004) 8 SCC 1 this Court examined the various authorities on statutory interpretation and concluded: (SCC pp. 8-9, paras 13-14)13. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the Rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only-nova constitutiofuturisformamimponeredebet non praeteritis-a new law ought to regulate what is to follow, not the past. (See Principles of Statutory Interpretation by Justice G.P. Singh, 9th Edn., 2004 at page 438.) It is not necessary that an express provision be made to make a statute retrospective and the presumption against retrospectivity may be rebutted by necessary implication especially in a case where the new law is made to cure an acknowledged evil for the benefit of the community as a whole (ibid., page 440).14. The presumption against retrospective operation is not applicable to declaratory statutes.... In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is to explain an earlier Act, it would be without object unless construed retrospectively. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended.... An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect (ibid., pp. 468-69).34. In Vijay v. State of Maharashtra (2006) 6 SCC 289, this court held as follows:12. The appellant was elected in terms of the provisions of a statute. The right to be elected was created by a statute and, thus, can be taken away by a statute. It is now well settled that when a literal reading of the provision giving retrospective effect does not produce absurdity or anomaly, the same would not be construed to be only prospective. The negation is not a rigid rule and varies with the intention and purport of the legislature, but to apply it in such a case is a doctrine of fairness. When a law is enacted for the benefit of the community as a whole, even in the absence of a provision, the statute may be held to be retrospective in nature. The appellant does not and cannot question the competence of the legislature in this behalf.36. It would also be relevant to notice that in the appeal, it has been specifically averred that the HPSEB has been making contractual appointments from amongst degree holders in the cadre of Junior Engineers, and that an order was issued upon the recommendation of the Screening Committee, which through its meeting held on 11.04.2018 had cleared the regularization of 28 such candidates. These degree holders are equivalent to Junior Engineers, and had been working for periods ranging between 4 to 6 years. A copy of that order has been produced as Annexure P-10 in the Special Leave Petition.SLP (C) 10533-37 of 2020.37. The considerations which weighed with this court in the previous decisions i.e. P.M. Latha, Yogesh Kumar, Anita (Supra) were quite different from the facts of this case. This courts conclusions that the prescription of a specific qualification, excluding what is generally regarded as a higher qualification can apply to certain categories of posts. Thus, in Latha and Yogesh Kumar as well as Anita (supra) those possessing degrees or post-graduation or B.Ed. degrees, were not considered eligible for the post of primary or junior teacher. In a similar manner, for Technician-III or lower post, the equivalent qualification for the post of Junior Engineer i.e. diploma holders were deemed to have been excluded, in Zahoor Ahmed Rather (supra). This court is cognizant of the fact that in Anita as well as Zahoor (supra) the stipulation in Jyoti (supra) which enabled consideration of candidates with higher qualifications was deemed to be a distinguishing ground. No such stipulation exists in the HPSEB Rules. Yet, of material significance is the fact that the higher post of Assistant Engineer (next in hierarchy to Junior Engineer) has nearly 2/3rds (64%) promotional quota. Amongst these individuals, those who held degrees before appointment as a Junior Engineers are entitled for consideration in a separate and distinct sub-quota, provided they function as a Junior Engineer continuously for a prescribed period. This salient aspect cannot be overlooked; it only shows the intent of the rule makers not to exclude degree holders from consideration for the lower post of Junior Engineers.38. As noticed previously, in addition to the above considerations, an amendment to the rules was made on 03.06.2020 declaring that those with higher qualifications are also entitled to apply or be considered for appointment. This amendment was brought in to clear all doubts and controversies and, in that sense, the amending provisions should be deemed to have been inserted from inception.
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Commissioner Of Income-Tax, Punjab, Jammu &Kashmir, Himac Vs. Raghbir Singh
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over the income or assets. The provision may even be for retransfer indirectly or for conferring power to reassume indirectly over the income or the assets. But the actual retransfer or exercise of the power to reassume is not necessary; if there be a provision of the nature contemplated, the proviso operates.6. The terms of the deed may now be examined. The shares were settled upon trust, and four trustees one of whom was the respondent were appointed. Genuineness of the trust is no longer in dispute. The direction that the shares are to stand in the name of the Chairman for the time being appears to have been necessitated by S. 33 of the Indian Companies Act, 1913 which prevented notice of any trust, expressed, implied or constructive to be entered on the register. The deed recites that the shares are to be held on trust irrevocably by the trustees for all or any of the purposes mentioned therein. The purpose for which the shares are to be held in the first instance is to pay off the debt due to R. B. Seth Jessa Ram Fateh Chand, and it is only after the debt is paid off that the directions in cls. (b) to (f) of cl. 2 come into operation. The deed is in terms expressly irrevocable, but on that account the operation of the first proviso is not excluded. If by the direction for application of the income for satisfaction of the debts due by the respondent, it could be said in law that there is a provision for retransfer directly or indirectly of the income or a right to reassume directly or indirectly power over the income, the settlement would be deemed revocable, recital that it is irrevocable notwithstanding.7. But the income from the shares since the execution of the deed of settlement arises to the trustees and it is liable to be applied for the purposes mentioned in the deed. The income has to be applied for satisfaction of debts which the settlor was under an obligation to discharge, but that is not to say that there is a provision for retransfer of the income or assets to the settlor, or that the settlor is invested with power to reassume the income or assets. The assets and the income are unmistakably impressed with the obligations arising out of the deed of trust. The settlor it is true obtains a benefit from the trust consequent upon satisfaction of his liability, but on that account the first proviso is not attracted.8. We are unable to accept the argument of counsel for the revenue that by the use of the expression "indirectly" in the first proviso the Legislature sought to bring within the purview of cl. (c) cases where the settlor was under the guise of a trust seeking to discharge his own liability. The proviso contemplates cases in which there is a provision for retransfer of the income or assets and such provision is for retransfer directly or indirectly. It also contemplates cases where there is a provision which confers a right upon the settlor to reassume powers over the income or assets directly or indirectly. It is the provision for retransfer directly or indirectly of income or assets or for reassumption of powers directly or indirectly over income or assets which brings the cases within the first proviso. Cases in which there is a settlement, but there is no provision in the settlement for retransfer or right to reassume power do not fall within the proviso, even if as a result of the settlement, the settlor obtains a benefit.9. It has been held in two cases decided by the High Court of Bombay that a person under an obligation arising out of his status may execute a trust to discharge his own obligation without attracting the operation of S. 16(1)(c). In Ramji Keshavji v. Commr. of Income-tax Bombay, 1945-13 ITR 105 : (AIR 1945 Bom 254 ) under a consent decrees, the assessee executed a deed of trust conveying certain properties for the benefit of his wife to the trustees. The deed provided that the net income from the properties shall be paid to the assessees wife during her lifetime and that she shall maintain her minor children by the assessee and "run the household". It was held by the High Court that the income derived from the trust property and payable to the assessees wife during her lifetime could not be deemed to be the asesseess income, for the direction in the deed did not amount to a provision for retransfer of the income or assets or for reassumption of power directly or indirectly over income or assets within the meaning of the first proviso to S. 16(1)(c). In D. R. Shahapure v. Commr. of Income-tax, Bombay, 1946-14 ITR 781 (Bom) the assessee with the object of making a provision for his wife made an entry in his business books of accounts crediting Rs.20,000 and endorsed against the entry. "The capital supplied to you will remain entirely mine but you will get the income over it up to the end of your life. This capital I will not take back up to the end of your life but I will do business for you on this capital and see that you get Rs.600 per annum for you". No specific assets were set apart to meet the sum of Rs.20,000 and there were no other entries in the books with regard to it. The High Court held that the entry was an irrevocable covenant to pay the income accruing on Rs.20,000 with a guarantee that it shall be Rs.600 a year, and therefore the case was covered by the third proviso to S. 16(1)(c) of the Act and the income which was paid to the wife under the covenant could not be deemed to be the income of the assessee under the first part of S. 16(1)(c). In our view these cases were correctly decided.
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0[ds]8. We are unable to accept the argument of counsel for the revenue that by the use of the expression "indirectly" in the first proviso the Legislature sought to bring within the purview of cl. (c) cases where the settlor was under the guise of a trust seeking to discharge his own liability. The proviso contemplates cases in which there is a provision for retransfer of the income or assets and such provision is for retransfer directly or indirectly. It also contemplates cases where there is a provision which confers a right upon the settlor to reassume powers over the income or assets directly or indirectly. It is the provision for retransfer directly or indirectly of income or assets or for reassumption of powers directly or indirectly over income or assets which brings the cases within the first proviso. Cases in which there is a settlement, but there is no provision in the settlement for retransfer or right to reassume power do not fall within the proviso, even if as a result of the settlement, the settlor obtains a benefit.9. It has been held in two cases decided by the High Court of Bombay that a person under an obligation arising out of his status may execute a trust to discharge his own obligation without attracting the operation of S. 16(1)(c). In Ramji Keshavji v. Commr. of Income-tax Bombay, 1945-13 ITR 105 : (AIR 1945 Bom 254 ) under a consent decrees, the assessee executed a deed of trust conveying certain properties for the benefit of his wife to the trustees. The deed provided that the net income from the properties shall be paid to the assessees wife during her lifetime and that she shall maintain her minor children by the assessee and "run the household". It was held by the High Court that the income derived from the trust property and payable to the assessees wife during her lifetime could not be deemed to be the asesseess income, for the direction in the deed did not amount to a provision for retransfer of the income or assets or for reassumption of power directly or indirectly over income or assets within the meaning of the first proviso to S. 16(1)(c). In D. R. Shahapure v. Commr. of Income-tax, Bombay, 1946-14 ITR 781 (Bom) the assessee with the object of making a provision for his wife made an entry in his business books of accounts crediting Rs.20,000 and endorsed against the entry. "The capital supplied to you will remain entirely mine but you will get the income over it up to the end of your life. This capital I will not take back up to the end of your life but I will do business for you on this capital and see that you get Rs.600 per annum for you". No specific assets were set apart to meet the sum of Rs.20,000 and there were no other entries in the books with regard to it. The High Court held that the entry was an irrevocable covenant to pay the income accruing on Rs.20,000 with a guarantee that it shall be Rs.600 a year, and therefore the case was covered by the third proviso to S. 16(1)(c) of the Act and the income which was paid to the wife under the covenant could not be deemed to be the income of the assessee under the first part of S. 16(1)(c). In our view these cases were correctly decided.But the income from the shares since the execution of the deed of settlement arises to the trustees and it is liable to be applied for the purposes mentioned in the deed. The income has to be applied for satisfaction of debts which the settlor was under an obligation to discharge, but that is not to say that there is a provision for retransfer of the income or assets to the settlor, or that the settlor is invested with power to reassume the income or assets. The assets and the income are unmistakably impressed with the obligations arising out of the deed of trust. The settlor it is true obtains a benefit from the trust consequent upon satisfaction of his liability, but on that account the first proviso is not attracted.
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over the income or assets. The provision may even be for retransfer indirectly or for conferring power to reassume indirectly over the income or the assets. But the actual retransfer or exercise of the power to reassume is not necessary; if there be a provision of the nature contemplated, the proviso operates.6. The terms of the deed may now be examined. The shares were settled upon trust, and four trustees one of whom was the respondent were appointed. Genuineness of the trust is no longer in dispute. The direction that the shares are to stand in the name of the Chairman for the time being appears to have been necessitated by S. 33 of the Indian Companies Act, 1913 which prevented notice of any trust, expressed, implied or constructive to be entered on the register. The deed recites that the shares are to be held on trust irrevocably by the trustees for all or any of the purposes mentioned therein. The purpose for which the shares are to be held in the first instance is to pay off the debt due to R. B. Seth Jessa Ram Fateh Chand, and it is only after the debt is paid off that the directions in cls. (b) to (f) of cl. 2 come into operation. The deed is in terms expressly irrevocable, but on that account the operation of the first proviso is not excluded. If by the direction for application of the income for satisfaction of the debts due by the respondent, it could be said in law that there is a provision for retransfer directly or indirectly of the income or a right to reassume directly or indirectly power over the income, the settlement would be deemed revocable, recital that it is irrevocable notwithstanding.7. But the income from the shares since the execution of the deed of settlement arises to the trustees and it is liable to be applied for the purposes mentioned in the deed. The income has to be applied for satisfaction of debts which the settlor was under an obligation to discharge, but that is not to say that there is a provision for retransfer of the income or assets to the settlor, or that the settlor is invested with power to reassume the income or assets. The assets and the income are unmistakably impressed with the obligations arising out of the deed of trust. The settlor it is true obtains a benefit from the trust consequent upon satisfaction of his liability, but on that account the first proviso is not attracted.8. We are unable to accept the argument of counsel for the revenue that by the use of the expression "indirectly" in the first proviso the Legislature sought to bring within the purview of cl. (c) cases where the settlor was under the guise of a trust seeking to discharge his own liability. The proviso contemplates cases in which there is a provision for retransfer of the income or assets and such provision is for retransfer directly or indirectly. It also contemplates cases where there is a provision which confers a right upon the settlor to reassume powers over the income or assets directly or indirectly. It is the provision for retransfer directly or indirectly of income or assets or for reassumption of powers directly or indirectly over income or assets which brings the cases within the first proviso. Cases in which there is a settlement, but there is no provision in the settlement for retransfer or right to reassume power do not fall within the proviso, even if as a result of the settlement, the settlor obtains a benefit.9. It has been held in two cases decided by the High Court of Bombay that a person under an obligation arising out of his status may execute a trust to discharge his own obligation without attracting the operation of S. 16(1)(c). In Ramji Keshavji v. Commr. of Income-tax Bombay, 1945-13 ITR 105 : (AIR 1945 Bom 254 ) under a consent decrees, the assessee executed a deed of trust conveying certain properties for the benefit of his wife to the trustees. The deed provided that the net income from the properties shall be paid to the assessees wife during her lifetime and that she shall maintain her minor children by the assessee and "run the household". It was held by the High Court that the income derived from the trust property and payable to the assessees wife during her lifetime could not be deemed to be the asesseess income, for the direction in the deed did not amount to a provision for retransfer of the income or assets or for reassumption of power directly or indirectly over income or assets within the meaning of the first proviso to S. 16(1)(c). In D. R. Shahapure v. Commr. of Income-tax, Bombay, 1946-14 ITR 781 (Bom) the assessee with the object of making a provision for his wife made an entry in his business books of accounts crediting Rs.20,000 and endorsed against the entry. "The capital supplied to you will remain entirely mine but you will get the income over it up to the end of your life. This capital I will not take back up to the end of your life but I will do business for you on this capital and see that you get Rs.600 per annum for you". No specific assets were set apart to meet the sum of Rs.20,000 and there were no other entries in the books with regard to it. The High Court held that the entry was an irrevocable covenant to pay the income accruing on Rs.20,000 with a guarantee that it shall be Rs.600 a year, and therefore the case was covered by the third proviso to S. 16(1)(c) of the Act and the income which was paid to the wife under the covenant could not be deemed to be the income of the assessee under the first part of S. 16(1)(c). In our view these cases were correctly decided.
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8. We are unable to accept the argument of counsel for the revenue that by the use of the expression "indirectly" in the first proviso the Legislature sought to bring within the purview of cl. (c) cases where the settlor was under the guise of a trust seeking to discharge his own liability. The proviso contemplates cases in which there is a provision for retransfer of the income or assets and such provision is for retransfer directly or indirectly. It also contemplates cases where there is a provision which confers a right upon the settlor to reassume powers over the income or assets directly or indirectly. It is the provision for retransfer directly or indirectly of income or assets or for reassumption of powers directly or indirectly over income or assets which brings the cases within the first proviso. Cases in which there is a settlement, but there is no provision in the settlement for retransfer or right to reassume power do not fall within the proviso, even if as a result of the settlement, the settlor obtains a benefit.9. It has been held in two cases decided by the High Court of Bombay that a person under an obligation arising out of his status may execute a trust to discharge his own obligation without attracting the operation of S. 16(1)(c). In Ramji Keshavji v. Commr. of Income-tax Bombay, 1945-13 ITR 105 : (AIR 1945 Bom 254 ) under a consent decrees, the assessee executed a deed of trust conveying certain properties for the benefit of his wife to the trustees. The deed provided that the net income from the properties shall be paid to the assessees wife during her lifetime and that she shall maintain her minor children by the assessee and "run the household". It was held by the High Court that the income derived from the trust property and payable to the assessees wife during her lifetime could not be deemed to be the asesseess income, for the direction in the deed did not amount to a provision for retransfer of the income or assets or for reassumption of power directly or indirectly over income or assets within the meaning of the first proviso to S. 16(1)(c). In D. R. Shahapure v. Commr. of Income-tax, Bombay, 1946-14 ITR 781 (Bom) the assessee with the object of making a provision for his wife made an entry in his business books of accounts crediting Rs.20,000 and endorsed against the entry. "The capital supplied to you will remain entirely mine but you will get the income over it up to the end of your life. This capital I will not take back up to the end of your life but I will do business for you on this capital and see that you get Rs.600 per annum for you". No specific assets were set apart to meet the sum of Rs.20,000 and there were no other entries in the books with regard to it. The High Court held that the entry was an irrevocable covenant to pay the income accruing on Rs.20,000 with a guarantee that it shall be Rs.600 a year, and therefore the case was covered by the third proviso to S. 16(1)(c) of the Act and the income which was paid to the wife under the covenant could not be deemed to be the income of the assessee under the first part of S. 16(1)(c). In our view these cases were correctly decided.But the income from the shares since the execution of the deed of settlement arises to the trustees and it is liable to be applied for the purposes mentioned in the deed. The income has to be applied for satisfaction of debts which the settlor was under an obligation to discharge, but that is not to say that there is a provision for retransfer of the income or assets to the settlor, or that the settlor is invested with power to reassume the income or assets. The assets and the income are unmistakably impressed with the obligations arising out of the deed of trust. The settlor it is true obtains a benefit from the trust consequent upon satisfaction of his liability, but on that account the first proviso is not attracted.
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Vikrama Das Mahant Vs. Daulat Ram Asthana & Ors
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mutation of the name of the 1st defendant, Vikrama Das. Undoubtedly such a mutation would seriously jeopardise the interests of the Asthan. This particularly so in view of the fact that the first defendant has all along been claiming the properties of the Asthan to the private and personal properties of the Mahant and that he himself is claiming to be the validly appointed Mahant for the time being, a claim which has been not only continued throughout in both the courts below but has been persisted in even in this Court as appears from ground No. 10 in the application filed to the High Court for leave to appeal to this Court and also ground No. 7 in the appellants statement of case filed in this Court. It is with reference to the contention which has been thus raised and maintained throughout, that both the courts below have come to concurrent findings (1) that the Asthan was a public trust and that the properties attached thereto are not the private properties of the Mahant, (2) that the defendant was not entitled to the Mahantship of the Asthan either by virtue of his claim to succeed thereto or by virtue of the document dated 10-7-1926, executed by Bharat Das, and (3) that he had at no. time any possession of these properties. It is true that the plaintiffs expressly based their suit on the title which they claim under the compromise decree. But even if that title fails, the further question remains, namely whether the original plaintiffs or Ram Sarup Das could not maintain the proceedings for the protection of the Asthan in their capacity as the de facto managers who have been in possession and management for a substantial number of years. 15. Now the ordinary rule that persons without title and who are mere intermeddlers cannot sue as of right is clear. But where public trusts are concerned, courts have a duty to see that their interests and the interests of those for whose benefit they exist are safeguarded. Therefore, courts must possess the power to sustain proper proceedings by them in appropriate cases and grant relief in the interests of and for the express benefit of the trust imposing such conditions as may be called for. 16. In the present case, if Ram Sarup Das has no. title and if he is an intermeddler - which is the basis on which he has been brought on record - so is the other side and obviously the Court cannot allow a public trust to be left to the mercy of unauthorised persons who are scrambling for a position of vantage in its management. But as it is right and proper that somebody should be permitted to continue the present litigation on behalf of the trust, the question is, who. We consider that, in view of Ram Sarup Dass long management and possession as Mahant and in view of the fact that he is purporting to act on its behalf and for its interests, it is proper that he should be allowed to continue to act on behalf of the trust until his title is investigated in appropriate proceedings and that this Court should grant a decree in his favour in these proceedings for the benefit of the trust. 17. In this view, we maintain the concurrent findings of the courts below against the defendant on the three matters hereinabove specified, that is (1) that that Asthan is a public trust and that the properties attached thereto are not the private properties of the Mahant, (2) that the defendant is not entitled to the Mahantship of the Asthan either by virtue of his claim to succeed thereto or by virtue of the document dated 10-7-1926, executed by Bharat Das, and (3) that he had at no. time any possession of these properties. But we discharge the findings in favour of the original plaintiffs or Ram Sarup Das, based on the question of validity of compromise decree and leave the question open. 18. In the result, therefore, the decree of the trial Court in so far as it gives effect to the decree in suit No. 90 of 1933 will be vacated. We direct that in place thereof a declaration should be substituted that, the mutation in favour of the 1st defendant in respect of the Asthan or the properties pertaining thereto does not in any way affect the rights of the Asthan or of any duly constituted Mahant thereof, that the 1st defendant has no. concern therewith and is not entitled to possession of the Asthan or its properties and that Ram Sarup Das may recover, in execution proceedings, for the benefit of the Asthan, possession of such of the properties in lists, A, B and C of which the defendant may have obtained possession by reason of such mutation. Subject to the modification of the decree as, above indicated the appeal must be dismissed with costs throughout. 19. But this is only a stop gap expedient. We cannot shut out eyes to the fact that we have before us a public trust of which, on the facts now before us, an alleged intermeddler claiming under a decree said to be void is in possession and management. It may be, when proper proceedings are instituted to determine the matter, that it will be found that he is not without legal authority or it may be proper to invest him with that authority if he has not already got it, or again it may be better to have another person or body. But those are not matters we need decide in these proceedings. All we need do is to bring the present state of facts to the notice of the Advocate-General of Uttar Pradesh and leave him to consider whether he should not, of his own motion, institute proceedings under S. 92, Civil P. C., or take other appropriate steps. Let a copy of this judgment be sent to him.
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0[ds]The fourth plaintiff, Baba Bansi Das, filed an application dated 11-11-1942 , in the trial Court itself asking his name to be removed from the array of plaintiffs and this was ordered. The second plaintiff, Raja Ram Pandey, died during the pendency of the appeal in the High Court and the appeal was continued as against the other two plaintiffs as respondents. Plaintiffs 1 and 3, Daulat Ram Asthana and Ram Prasad Singh died after leave to appeal to this Court was granted by the High Court, the former on 2-2-1951, and the latter on 19-2-1952. The appellant filed an application in the High Court (after two other futile applications) on 3-9-1953, praying that the second defendant Chandrasekhara Pandey may be treated as the trustee against whom the present appeal may be continued in the place of the deceased plaintiffs 1 to 3. It was also stated in the application that two other persons, Ram Sarup Das and Shyam Narayan Pandey were intermeddling with the trust estate and that they should also be impleaded. A report was thereupon called for by the High Court from the lower Court. The Civil Judge submitted a report to the effect that Chandra Sekhara Pandey appeared and disclaimed any interest, that Shyam Narayan Pandey did not appear in spite of personal service and that Ram Sarup Das was an intermeddler and was intermeddling with the trust estate. When the report came up for consideration by the High Court, it was prayed on behalf of the appellant that the names of Daulat Ram Asthna and Ram Prasad Singh may be removed from the record and that the name of Ram Sarup Das who had been found to intermeddling with the trust estate may be substituted as the respondent against whom the appeal was to be continued. This prayer was opposed on behalf of Ram Sarup Das. But the High Court directed him to be brought on record because he claimed to be intermeddling with the trust estate. This order was affirmed by this Court by its order in Chambers dated 5-5-1955. Ram Sarup Das is accordingly the only respondent before us. At the hearing of the appeal counsel for Ram Sarup Das raised the preliminary question that he has been wrongly brought on record as a legal representative. He is not, however, prepared to say that Ram Sarup Das has no. interest in the trust estate or that he is not in possession thereof. On the other hand, he claims to be in possession and maintains his title to the Mahantship by virtue of the compromise decree. We cannot therefore, uphold the preliminary objection. The continuance of the appeal as against Ram Sarup Das as directed by the High Court and as accepted by this Court in its order dated 5-5-1955, must stand. After elaborate consideration, the finding on this issue was the Asthan and the properties which are appurtenant there to are assuredly not the personal property of the Mahant of the Asthan but that they are waqf and subject to a public trust of a religious and charitable natureThe finding thereon is as follows :"It has been alleged by the plaintiffs that Ram Sarup Das was initiated as a Chela by Bharat Das and is therefore a lawful successor. * * * But be that as it may, he is the Mahant by virtue of the decree. After the decree Ram Sarup Das entered into possession of the Asthan property and his name was recorded in the revenue papers until it was expunged in 1940 by the Board of Revenue. The plaintiffs have every right to seek declaration of Mahantship of Ram Sarup Das, for they as trustees and he as Mahant, are knit together into a body by the common bond of management of the Asthan. It was not at all necessary to implea Ram Sarup Das for there are no. differences between the trustees and the Mahant. The defendant at any rate cannot raise objection to the omission to implead Ram Sarup Das, for there is no. privity between the defendant and Ram Sarup Das and neither derives title through the other."Before noticing the finding on these two issues, it is necessary to mention that the first defendant based his title to the Mahantship on two grounds, viz (1) the suit Asthan at Amaulipur is a subordinate branch of Hanuman Garhi and that the defendant who is said to be the Mahant of Jhundi Jamaat in Patti Ujjainiya of Hanuman Garhi by virtue of succession to his Guru Mahabir Das and the said Garhi belongs to the same spiritual family as that of Mahant Bharat Das. Hence by custom he is entitled to succeed to the Amaulipur Garhi (presumably because Bharat Das became incompetent), and (2) the document executed by Bharat Das on 10-7-1926, transferring the Mahantship to him entitles him thereto8. The finding of the trial court on a consideration of both the above grounds appears from the following extracts from its judgment"There is no. warrant for connecting the Amaulipur Asthan with Hanuman Garhi*** No. custom entitling a Sadhoo of Hanuman Garhi to succeed to the Amaulipur Gaddi has been established ***The defendant is neither the Chela of Bharat Das nor of Bharat Das GuruAs the succession to the Mahantship of Amaulipur has always been in the line of senior Chela, Bikrama Das would by no. means be the prospective Mahant Amaulipur after Bharat Das. * * * The defendant has stated in this Court that the office of Mahant is transferable only to the prospective Mahant. As I have held that Bikrama Das could not be prospective Mahant of Amaulipur, transfer of Mahantship of this Asthan to the defendant would illegal according to his own theory"The learned trial Judge after noticing the judgment of the Privy Council and the fact that the document of 10-7-1926, on which the first defendant, Vikrama Das, relied, appears to have been cancelled by another document by Bharat Das executed on 29-10-1926, summed up as follows :"I therefore, hold that Mahantship did not pass on to the defendant, and he has no. right or title to the Asthan and its properties. Qua these, he is a rank trespasser and he is not entitled to retain them even if he has somehow been able to grab at them. He has no. right to meddle with the affairs of the Asthan."The reasons referred to are set out in para 12 of the written statement under six heads as follows :"(A) The said suit was entirely collusive(B) Bharat Das, in no. way, an insane and even if it be presumed, on the false allegations of the plaintiffs that he was an insane, no. proper and impartial person was appointed as his guardian. Devi Prasad, resident of Udipur, who was nominated as his guardian, is a close member of the family of Ram Prasad Singh, resident of Udipur, one of the trustees and was in collusion with the plaintiffs, the arbitrary trustees in the suit aforesaid(C) The contesting defendant was not a party to suit No. 90 of 1933(D) The proceedings in suit No. 90 of 1933 were taken during the pendency of suit No. 27 of 1927 and (the proceedings) are, therefore, invalid and null and void according to law and justice and also under section 52 of the Transfer of Property Act(E) The suit aforesaid was beyond the scope of S. 92, Civil P. C. and necessary proceedings were also not taken under section 4(F) The compromise in the aforesaid suit was caused to be accepted by the Court by deceiving the Court and on concealing the real facts"At the trial a further objection was taken to validity of the decree on the ground that the suit which resulted in that decree was instituted by only two out of the three persons who had obtained the Collectors sanction to institute the suit and that accordingly the institution of the suit as well as the decree thereupon were invalid. The finding of the learned Judge on this issue is as follows :"There is no. doubt that there were more than one, irregularities in the suit. * * * The decree in question was passed by a competent court which has jurisdiction to try the suit. The suit itself has been instituted with the sanction of the Collector. * * * The decree is perfectly good so long as it is not set aside by a competent court at the instance of Bharat Das. As it stands it is operative even as against Bharat Das himself." It was further found as follows :"The decree arms the present plaintiffs with the right of possession of the Asthan and its properties and of their management. This right had been violated in respect of certain properties by an adverse order of the Revenue Courts and was in jeopardy with regard to the other properties at the date of the suit by the pendency of mutation applications of the defendant and the plaintiffs undoubtedly had, by virtue of the decree, the right to institute the present suitAs regards issue No. 8 the finding is as follows :"There is no. force in this plea. The only surviving trustees are the plaintiffs and the Chandra Sekhara (2nd defendant), the rest of those who were appointed by the decree in S. 92 suit having died since."As regards issue No. 11 the finding is as follows :"This plea is based upon the fact that a suit for cancellation of the deed dated 10-7-1926, has become time barred and as the subject of the present suit is supposed by the defendant to be in reality cancellation of that deed he set up bar of limitation. In the first place, I do not think it was necessary for the plaintiffs to seek cancellation of the aforesaid deed as a necessary preliminary to the enforcement of their rights as trustees and they would very well ignore the deed. The defendant relied upon the deed and it was for him to establish its validity. The cause of action for the present suit has been furnished by the order of the Board of Revenue directing mutation in favour of Bikrama Das and the object of the present suit is no. other than abrogation of the Revenue Courts order by a Civil Courts decree which is only effective remedy of mistakes in mutation committed by the Revenue Courts. The suit was instituted well within time."As regards issue No. 12 the finding is as follows :"The defendant has pleaded section 42 inasmuch as the plaintiffs have sought a mere declaration in respect of the properties and not possession as well. * * * The defendant was not in actual possession of the properties in suit. He has made an abortive attempt to prove his possession by examining a few unscrupulous tenants but the evidence on record is overwhelmingly in favour of plaintiffs possession. * * *The only properties against which the defendants name was mutated prior to the suit are those included in list C and the plaintiffs have sought possession of these properties. It was not necessary for the plaintiffs to sue for anything more than a declaration in respect of the properties against which the name of Ramsarup Das stood recorded at the date institution of the suit. Subsequent acquisition of possession by the defendant will not entitle him to raise the plea of S. 42."It is on these various finding that the trial Court passed the following decree in favour of the plaintiffs"It is ordered and decreed that the plaintiffs claim about the declaration on the point that the plaintiffs and defendant No. 2 are the trustees of the Asthan of Amaulipur and the properties connected with it mentioned in lists A, B and C and are the managers of the properties aforesaid as of right, with which the defendants have no. concern and also about the recovery of possession in favour of plaintiffs Nos. 1 to 3 as trustees and Mahant Ram Sarup Das as the Mahant of the Asthan of Amaulipur over the properties mentioned in Schedule C, be decreed."9. The substantial contentions raised before the High Court as appears from its judgement and as summarised in the order of the High Court granting the certificate are three-fold1. The decree in suit No. 90 of 1933 was bad2. The plaintiffs was not de facto trustees3. There had been valid assignment from Bharat Das in appellants favourWe have now to see what the findings of the High Court are. As regards issues Nos. 1 and 12, the learned Judges said as follows :"Learned counsel for the appellant has not, in his able argument, challenged the finding of the court below that the Asthan and the property in dispute constituted a trust, that they were not the personal and private property of Bharat Das and that the plaintiffs are, and the appellant is not, in actual possession thereof"As regards the title of the defendant covered by issues Nos. 4 and 5, the learned Judges recorded their findings as follows :"In view of the findings arrived by the learned Civil Judge and which as we have seen, have not been challenged before us, the Asthan and the property in dispute were not the personal and private property of Bharat Das and he could not make a valid assignment thereof in favour of the appellant, who according to his finding, cannot be regarded as his rightful successor. In other words, the appellant, who is also, according to the finding of the learned Civil Judge, not in possession of the property in dispute, must be regarded as mere trespasser."The High Court appears to have given no. positive finding on issue No. 6 relating to the title of Ram Sarup Das but has apparently maintained the trial court decree which may be claimed to involve such a finding. The main contest before the High Court appears to have been concentrated on the finding of the trial court relating to issue No. 3In agreement with the view taken by the trial court, the High Court held on this issue that notwithstanding certain irregularities, the decree was not void and that such a decree was only voidable at the instance of the persons whom it purported to bind and who were in fact parties to the decree and that the appellant in the present case, who was merely a trespasser, had no. such right to avoid the decree. As regards the plea that the said previous suit and decree under S. 92 were collusive, the learned Judges recorded their opinion as follows :"We are not satisfied that there was any collusion or dishonesty on the part of the plaintiffs in their suit under S. 92 of the Code of Civil Procedure. The circumstances had in fact made the institution of such a suit imperative and there is nothing to show that the plaintiffs were actuated by anything but the best of motives in instituting that suit and obtaining the orders of the court for the proper management of the trust property. We are, therefore, of opinion that the plaintiffs are by virtue of the decree in suit No. 90 of 1933 entitled to maintain the present suit"On the question as to de facto trusteeship and as to the right to institute the suit on that basis, the High Court held as follows :"But even if it be held that the decree in suit No. 90 of 1933 does not entitle the plaintiffs to institute the present suit, there can be no. doubt that as de facto trustees they are entitled to maintain it. * * * It is, however, argued on behalf of the appellant that this doctrine of de facto trusteeship cannot apply to the present case because the possession of the plaintiffs cannot be regarded as clear and undisputedIt is said that the plaintiffs obtained a decree in their favour and came into possession of the trust by stealing a march upon the appellant who was at the time prosecuting his appeal in the Privy Council and that the possession of the plaintiffs cannot be regarded as honest. Having regard to the circumstances in which the plaintiffs instituted a suit under S. 92, Civil P.C., the contention of the learned counsel for the appellant does not appear to be justifiedThere is nothing to show that the plaintiffs possession of the trust property ever since they obtained a decree in the year 1934 has not been clear and undisputed. No. doubt, after the decision of the appeal by the Privy Council in the year 1935 the appellant did start making an attempt to obtain mutation of names with respect to some of the property belonging to the trust in his favour. But that would not affect the nature of the plaintiffs possessionAs we have seen, the appellant has no. title to the property and is not in actual possession of any portion of it. Even if he were, his possession would only be that of a trespasser and the plaintiffs as de facto trustees are clearly entitled to maintain the suit against him"Thus, the learned Judges of the High Court held that the plaintiffs had the right to maintain the suit on two grounds. (1) The decree in suit No. 90 of 1933 was valid until set aside. (2) In any case the plaintiffs were de facto trustees who had clear and undisputed possession of the trust and its properties and as such they could maintain the suit10. It may also be mentioned at this stage that in the High Court a point appears to have been pressed that the judgment of the trial court holding that the defendant had no. title under the document dated 10-7-1926, in effect amounted to cancellation of that document and that the Court was not competent, having regard to the frame of the suit, to give any such reliefIt was pointed out that the plaint had originally asked for a declaration to the effect that the appellant acquired no. rights in the property in suit by virtue of the documents but that that relief was dropped by a subsequent amendment. The learned Judges of the High court point out that the plaintiffs case is that Bharat Das being a mere trustee had no. right to execute the document in favour of the appellant and that the document is therefore without effect and that therefore it was unnecessary for the plaintiffs to ask for cancellation of the document. They found, therefore, this point also in favour of the plaintiffs. As a result of all the findings above mentioned, in concurrence with those of the trial court, the High Court merely dismissed the appeal13. So far as the attack based on the ground of fraud or collusion is concerned we are of the opinion that it is no. longer open to be challenged before us, in view of the finding of the High Court. As regards the order contentions raised before us relating to the validity of the compromise decree, we do not consider it necessary, notwithstanding strenuous arguments on both sides, to decide between the rival contentions in the view that we are prepared to take as to the appropriate order to be passed by this Court in this appealIt appears to us that this contention is not without force. Both the courts below have concurrently found that consequent on the compromise decree in suit No. 90 of 1933, the plaintiffs along with the other trustees and Ram Sarup Das have obtained possession of the Asthan and its properties and that (except those in list C) the properties were mutated in the name of Ram Sarup Das and that they have been in possession and management of the Asthan and its properties since then. Both the courts have also found that the first defendant, Vikrama Das, had no. possession at any time notwithstanding that he was able, after the Privy Council decree, to get some of the properties mutated in his name. They have also held that the plaintiffs with Ram Sarup Das have been continuing in possession all along or at any rate up to the date of the suit. In these circumstances the question before us is whether a person who has been in de facto possession and management of the Asthan and its properties from 1934 to 1941 (and thereafter up-to-date) claiming to be its trustee under the decree of a Court, valid or invalid has not sufficient interest to maintain proceedings for the warding off of a cloud cast by the defendants action against the interests of the Asthan. See - Mahadeo Prasad Singh v. Karia Bharti, 1935 PC 44 (AIR V22) (C) and - Ram Charan Das v. Naurangi Lal, 1933 PC 75 (AIR V20) (D). It is to be remembered as pointed out by the trial Court in its finding under issue No. 11, already quoted above, that the present suit is virtually a suit for abrogation of the Revenue Courts order directing mutation of the name of the 1st defendant, Vikrama DasUndoubtedly such a mutation would seriously jeopardise the interests of the Asthan. This particularly so in view of the fact that the first defendant has all along been claiming the properties of the Asthan to the private and personal properties of the Mahant and that he himself is claiming to be the validly appointed Mahant for the time being, a claim which has been not only continued throughout in both the courts below but has been persisted in even in this Court as appears from ground No. 10 in the application filed to the High Court for leave to appeal to this Court and also ground No. 7 in the appellants statement of case filed in this Court. It is with reference to the contention which has been thus raised and maintained throughout, that both the courts below have come to concurrent findings (1) that the Asthan was a public trust and that the properties attached thereto are not the private properties of the Mahant, (2) that the defendant was not entitled to the Mahantship of the Asthan either by virtue of his claim to succeed thereto or by virtue of the document dated 10-7-1926, executed by Bharat Das, and (3) that he had at no. time any possession of these properties. It is true that the plaintiffs expressly based their suit on the title which they claim under the compromise decree. But even if that title fails, the further question remains, namely whether the original plaintiffs or Ram Sarup Das could not maintain the proceedings for the protection of the Asthan in their capacity as the de facto managers who have been in possession and management for a substantial number of years15. Now the ordinary rule that persons without title and who are mere intermeddlers cannot sue as of right is clear. But where public trusts are concerned, courts have a duty to see that their interests and the interests of those for whose benefit they exist are safeguarded. Therefore, courts must possess the power to sustain proper proceedings by them in appropriate cases and grant relief in the interests of and for the express benefit of the trust imposing such conditions as may be called for16. In the present case, if Ram Sarup Das has no. title and if he is an intermeddler - which is the basis on which he has been brought on record - so is the other side and obviously the Court cannot allow a public trust to be left to the mercy of unauthorised persons who are scrambling for a position of vantage in its management. But as it is right and proper that somebody should be permitted to continue the present litigation on behalf of the trust, the question is, who. We consider that, in view of Ram Sarup Dass long management and possession as Mahant and in view of the fact that he is purporting to act on its behalf and for its interests, it is proper that he should be allowed to continue to act on behalf of the trust until his title is investigated in appropriate proceedings and that this Court should grant a decree in his favour in these proceedings for the benefit of the trust17. In this view, we maintain the concurrent findings of the courts below against the defendant on the three matters hereinabove specified, that is (1) that that Asthan is a public trust and that the properties attached thereto are not the private properties of the Mahant, (2) that the defendant is not entitled to the Mahantship of the Asthan either by virtue of his claim to succeed thereto or by virtue of the document dated 10-7-1926, executed by Bharat Das, and (3) that he had at no. time any possession of these properties. But we discharge the findings in favour of the original plaintiffs or Ram Sarup Das, based on the question of validity of compromise decree and leave the question open18. In the result, therefore, the decree of the trial Court in so far as it gives effect to the decree in suit No. 90 of 1933 will be vacated. We direct that in place thereof a declaration should be substituted that, the mutation in favour of the 1st defendant in respect of the Asthan or the properties pertaining thereto does not in any way affect the rights of the Asthan or of any duly constituted Mahant thereof, that the 1st defendant has no. concern therewith and is not entitled to possession of the Asthan or its properties and that Ram Sarup Das may recover, in execution proceedings, for the benefit of the Asthan, possession of such of the properties in lists, A, B and C of which the defendant may have obtained possession by reason of such mutation. Subject to the modification of the decree as, above indicated the appeal must be dismissed with costs throughout19. But this is only a stop gap expedient. We cannot shut out eyes to the fact that we have before us a public trust of which, on the facts now before us, an alleged intermeddler claiming under a decree said to be void is in possession and management. It may be, when proper proceedings are instituted to determine the matter, that it will be found that he is not without legal authority or it may be proper to invest him with that authority if he has not already got it, or again it may be better to have another person or body. But those are not matters we need decide in these proceedings. All we need do is to bring the present state of facts to the notice of the Advocate-General of Uttar Pradesh and leave him to consider whether he should not, of his own motion, institute proceedings under S. 92, Civil P. C., or take other appropriate steps. Let a copy of this judgment be sent to him.
| 0 | 7,931 | 4,937 |
### Instruction:
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mutation of the name of the 1st defendant, Vikrama Das. Undoubtedly such a mutation would seriously jeopardise the interests of the Asthan. This particularly so in view of the fact that the first defendant has all along been claiming the properties of the Asthan to the private and personal properties of the Mahant and that he himself is claiming to be the validly appointed Mahant for the time being, a claim which has been not only continued throughout in both the courts below but has been persisted in even in this Court as appears from ground No. 10 in the application filed to the High Court for leave to appeal to this Court and also ground No. 7 in the appellants statement of case filed in this Court. It is with reference to the contention which has been thus raised and maintained throughout, that both the courts below have come to concurrent findings (1) that the Asthan was a public trust and that the properties attached thereto are not the private properties of the Mahant, (2) that the defendant was not entitled to the Mahantship of the Asthan either by virtue of his claim to succeed thereto or by virtue of the document dated 10-7-1926, executed by Bharat Das, and (3) that he had at no. time any possession of these properties. It is true that the plaintiffs expressly based their suit on the title which they claim under the compromise decree. But even if that title fails, the further question remains, namely whether the original plaintiffs or Ram Sarup Das could not maintain the proceedings for the protection of the Asthan in their capacity as the de facto managers who have been in possession and management for a substantial number of years. 15. Now the ordinary rule that persons without title and who are mere intermeddlers cannot sue as of right is clear. But where public trusts are concerned, courts have a duty to see that their interests and the interests of those for whose benefit they exist are safeguarded. Therefore, courts must possess the power to sustain proper proceedings by them in appropriate cases and grant relief in the interests of and for the express benefit of the trust imposing such conditions as may be called for. 16. In the present case, if Ram Sarup Das has no. title and if he is an intermeddler - which is the basis on which he has been brought on record - so is the other side and obviously the Court cannot allow a public trust to be left to the mercy of unauthorised persons who are scrambling for a position of vantage in its management. But as it is right and proper that somebody should be permitted to continue the present litigation on behalf of the trust, the question is, who. We consider that, in view of Ram Sarup Dass long management and possession as Mahant and in view of the fact that he is purporting to act on its behalf and for its interests, it is proper that he should be allowed to continue to act on behalf of the trust until his title is investigated in appropriate proceedings and that this Court should grant a decree in his favour in these proceedings for the benefit of the trust. 17. In this view, we maintain the concurrent findings of the courts below against the defendant on the three matters hereinabove specified, that is (1) that that Asthan is a public trust and that the properties attached thereto are not the private properties of the Mahant, (2) that the defendant is not entitled to the Mahantship of the Asthan either by virtue of his claim to succeed thereto or by virtue of the document dated 10-7-1926, executed by Bharat Das, and (3) that he had at no. time any possession of these properties. But we discharge the findings in favour of the original plaintiffs or Ram Sarup Das, based on the question of validity of compromise decree and leave the question open. 18. In the result, therefore, the decree of the trial Court in so far as it gives effect to the decree in suit No. 90 of 1933 will be vacated. We direct that in place thereof a declaration should be substituted that, the mutation in favour of the 1st defendant in respect of the Asthan or the properties pertaining thereto does not in any way affect the rights of the Asthan or of any duly constituted Mahant thereof, that the 1st defendant has no. concern therewith and is not entitled to possession of the Asthan or its properties and that Ram Sarup Das may recover, in execution proceedings, for the benefit of the Asthan, possession of such of the properties in lists, A, B and C of which the defendant may have obtained possession by reason of such mutation. Subject to the modification of the decree as, above indicated the appeal must be dismissed with costs throughout. 19. But this is only a stop gap expedient. We cannot shut out eyes to the fact that we have before us a public trust of which, on the facts now before us, an alleged intermeddler claiming under a decree said to be void is in possession and management. It may be, when proper proceedings are instituted to determine the matter, that it will be found that he is not without legal authority or it may be proper to invest him with that authority if he has not already got it, or again it may be better to have another person or body. But those are not matters we need decide in these proceedings. All we need do is to bring the present state of facts to the notice of the Advocate-General of Uttar Pradesh and leave him to consider whether he should not, of his own motion, institute proceedings under S. 92, Civil P. C., or take other appropriate steps. Let a copy of this judgment be sent to him.
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of the Revenue Courts order directing mutation of the name of the 1st defendant, Vikrama DasUndoubtedly such a mutation would seriously jeopardise the interests of the Asthan. This particularly so in view of the fact that the first defendant has all along been claiming the properties of the Asthan to the private and personal properties of the Mahant and that he himself is claiming to be the validly appointed Mahant for the time being, a claim which has been not only continued throughout in both the courts below but has been persisted in even in this Court as appears from ground No. 10 in the application filed to the High Court for leave to appeal to this Court and also ground No. 7 in the appellants statement of case filed in this Court. It is with reference to the contention which has been thus raised and maintained throughout, that both the courts below have come to concurrent findings (1) that the Asthan was a public trust and that the properties attached thereto are not the private properties of the Mahant, (2) that the defendant was not entitled to the Mahantship of the Asthan either by virtue of his claim to succeed thereto or by virtue of the document dated 10-7-1926, executed by Bharat Das, and (3) that he had at no. time any possession of these properties. It is true that the plaintiffs expressly based their suit on the title which they claim under the compromise decree. But even if that title fails, the further question remains, namely whether the original plaintiffs or Ram Sarup Das could not maintain the proceedings for the protection of the Asthan in their capacity as the de facto managers who have been in possession and management for a substantial number of years15. Now the ordinary rule that persons without title and who are mere intermeddlers cannot sue as of right is clear. But where public trusts are concerned, courts have a duty to see that their interests and the interests of those for whose benefit they exist are safeguarded. Therefore, courts must possess the power to sustain proper proceedings by them in appropriate cases and grant relief in the interests of and for the express benefit of the trust imposing such conditions as may be called for16. In the present case, if Ram Sarup Das has no. title and if he is an intermeddler - which is the basis on which he has been brought on record - so is the other side and obviously the Court cannot allow a public trust to be left to the mercy of unauthorised persons who are scrambling for a position of vantage in its management. But as it is right and proper that somebody should be permitted to continue the present litigation on behalf of the trust, the question is, who. We consider that, in view of Ram Sarup Dass long management and possession as Mahant and in view of the fact that he is purporting to act on its behalf and for its interests, it is proper that he should be allowed to continue to act on behalf of the trust until his title is investigated in appropriate proceedings and that this Court should grant a decree in his favour in these proceedings for the benefit of the trust17. In this view, we maintain the concurrent findings of the courts below against the defendant on the three matters hereinabove specified, that is (1) that that Asthan is a public trust and that the properties attached thereto are not the private properties of the Mahant, (2) that the defendant is not entitled to the Mahantship of the Asthan either by virtue of his claim to succeed thereto or by virtue of the document dated 10-7-1926, executed by Bharat Das, and (3) that he had at no. time any possession of these properties. But we discharge the findings in favour of the original plaintiffs or Ram Sarup Das, based on the question of validity of compromise decree and leave the question open18. In the result, therefore, the decree of the trial Court in so far as it gives effect to the decree in suit No. 90 of 1933 will be vacated. We direct that in place thereof a declaration should be substituted that, the mutation in favour of the 1st defendant in respect of the Asthan or the properties pertaining thereto does not in any way affect the rights of the Asthan or of any duly constituted Mahant thereof, that the 1st defendant has no. concern therewith and is not entitled to possession of the Asthan or its properties and that Ram Sarup Das may recover, in execution proceedings, for the benefit of the Asthan, possession of such of the properties in lists, A, B and C of which the defendant may have obtained possession by reason of such mutation. Subject to the modification of the decree as, above indicated the appeal must be dismissed with costs throughout19. But this is only a stop gap expedient. We cannot shut out eyes to the fact that we have before us a public trust of which, on the facts now before us, an alleged intermeddler claiming under a decree said to be void is in possession and management. It may be, when proper proceedings are instituted to determine the matter, that it will be found that he is not without legal authority or it may be proper to invest him with that authority if he has not already got it, or again it may be better to have another person or body. But those are not matters we need decide in these proceedings. All we need do is to bring the present state of facts to the notice of the Advocate-General of Uttar Pradesh and leave him to consider whether he should not, of his own motion, institute proceedings under S. 92, Civil P. C., or take other appropriate steps. Let a copy of this judgment be sent to him.
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ANAND SWARUP MISRA Vs. B.N. NIGAM
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B. N. Nigam, a puisne judge of the Court, for certain observations alleged to have been made by him in open court and addressed to the petitioner. Special Leave petition (Cr) No. 381 of 68 is filed against the order of a Division Bench of the High Court refusing to entertain an appeal against the order of the learned Chief justice in the contempt petition.2. The facts which give rise to the principal petition, No. 391 of 68, may be briefly stated. Petitioner is an Advocate of the Allahabad High Court and is practising before the Lucknow Bench. On January 20,1967 he presented a writ petition before a Division Bench of Mr. Justice B. N. Nigam and Mr. Justice G. D. Sehgal claiming certain reliefs in respect of a public servant who was under suspension and against whom a departmental enquiry had been held. The petition was admitted by the Court to its file, but the Court declined to grant stay of the order of dismissal which it was apprehended may be passed against Surendra Nath Mathur the petitioner in the writ petition. The petitioner, who was appearing as the Advocate in the case, was on his own statement in the petition somewhat persistent. The Court, however, thought that it was a case in which stay should not be granted When the petitioner persisted in his argument, it is said that Mr. Justice Nigam observed "Dont waste the time of the Court". The petitioner still persisted and wanted to refer to the grounds in the petition which was filed by him on behalf of his client. The learned judge, it is said, observed that the petitioner might amend the writ petition. Thereafter, there was some more argument and the learned judge, it is said, observed that the petitioner was going beyond the writ petition. The petitioner then represented that he had taken the point which he was arguing in the petition whereupon Mr. Justice Nigam asked the petitioner to point out the paragraph in which the particular point was taken. It appears that further discussion was carried on between the Bar and the Bench. The petitioner then read out some grounds. He also referred to what he called a synopsis of the authorities in support of the said petition. On that the judge protested and said that the list of authorities should have been given to the Reader. But according to the petitioner the "Readers of the Court sometimes liked it and sometimes did not like it". On that it is said that Mr. Justice Nigam again observed that the petitioner was wasting the time of the Court. The petitioner then broke out into a peroration and the learned judge was moved into saying "Do not give us a sermon". Then it is said that Mr. Justice Nigam again said after some time "Dont waste time. Go away".3. It seems that the appellant took umbrage when Mr. Justice Nigam said, according to the petitioner, "Go away, I say". The petitioner says that he protested and persisted in his argument. Thereafter the petitioner sought to present a memorandum of a petition seeking to make written submissions to the Court which had heard the writ petition. But his petition was not accepted, because the time for entertaining petitions was over. There was a further hearing and Mr. Justice Nigam, the petitioner says, said several times "Go on, go on, go on". The petitioner being of the view, that the statements made by Mr. Justice Nigam amounted to contempt of his own Court by him in that he had insulted the petitioner when the petitioner was performing his duties as an Advocate moved a petition before the Chief Justice of the High Court requesting him to take appropriate action. The learned Chief Justice rejected the petition and against the order rejecting the petition an appeal was preferred, which was also dismissed as incompetent. An application for a certificate to move this Court was also rejected.4. From the statements which have been made in Para.8 to 33 under the heading "Narrative" in S. L P. (Cr) No. 381 of 1968, it appears clear that by his persistence and aggressive advocacy in a case of little importance the petitioner had sorely tried the patience of the judge and if in the heat of the moment as the petitioner contends the judge used some expressions like "Go away" or that "You are wasting the time of the Court" (on the truth of that statement we express no opinion), we do not think that any case is made out for taking proceedings for contempt against the judge for contempt of the High Court. From the way in which the proceedings were commenced before the High Court and the way in which they have been persisted throughout and, if we can guess, from the manner in which the argument was presented in this Court for more than one and three quarters of an hour we have no doubt that a trifling incident in Court was magnified out of all proportions by the petitioner and he filed a petition in the High Court and an appeal before the Division Bench and a special leave petition in this Court. We have no doubt that Mr. Justice Nigam never intended to insult the petitioner. The petitioner has been unduly sensitive. We do not feel called upon in this case to express an opinion on the question whether a judge of a court of record may be held guilty of contempt when presiding in Court.5. We think that no case is made out for taking proceedings in contempt. We do not propose to decide the question whether against the order issued by the learned Chief Justice an appeal lay to the Division Bench, nor do we think it necessary to go into the question whether the learned Chief Justice in disposing of the application acted improperly in rejecting the petition without a speaking order and not making his order in open court.
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0[ds]4. From the statements which have been made in Para.8 to 33 under the heading "Narrative" in S. L P. (Cr) No. 381 of 1968, it appears clear that by his persistence and aggressive advocacy in a case of little importance the petitioner had sorely tried the patience of the judge and if in the heat of the moment as the petitioner contends the judge used some expressions like "Go away" or that "You are wasting the time of the Court" (on the truth of that statement we express no opinion), we do not think that any case is made out for taking proceedings for contempt against the judge for contempt of the High Court. From the way in which the proceedings were commenced before the High Court and the way in which they have been persisted throughout and, if we can guess, from the manner in which the argument was presented in this Court for more than one and three quarters of an hour we have no doubt that a trifling incident in Court was magnified out of all proportions by the petitioner and he filed a petition in the High Court and an appeal before the Division Bench and a special leave petition in this Court. We have no doubt that Mr. Justice Nigam never intended to insult the petitioner. The petitioner has been unduly sensitive. We do not feel called upon in this case to express an opinion on the question whether a judge of a court of record may be held guilty of contempt when presiding in Court.5. We think that no case is made out for taking proceedings in contempt. We do not propose to decide the question whether against the order issued by the learned Chief Justice an appeal lay to the Division Bench, nor do we think it necessary to go into the question whether the learned Chief Justice in disposing of the application acted improperly in rejecting the petition without a speaking order and not making his order in open court.
| 0 | 1,130 | 367 |
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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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B. N. Nigam, a puisne judge of the Court, for certain observations alleged to have been made by him in open court and addressed to the petitioner. Special Leave petition (Cr) No. 381 of 68 is filed against the order of a Division Bench of the High Court refusing to entertain an appeal against the order of the learned Chief justice in the contempt petition.2. The facts which give rise to the principal petition, No. 391 of 68, may be briefly stated. Petitioner is an Advocate of the Allahabad High Court and is practising before the Lucknow Bench. On January 20,1967 he presented a writ petition before a Division Bench of Mr. Justice B. N. Nigam and Mr. Justice G. D. Sehgal claiming certain reliefs in respect of a public servant who was under suspension and against whom a departmental enquiry had been held. The petition was admitted by the Court to its file, but the Court declined to grant stay of the order of dismissal which it was apprehended may be passed against Surendra Nath Mathur the petitioner in the writ petition. The petitioner, who was appearing as the Advocate in the case, was on his own statement in the petition somewhat persistent. The Court, however, thought that it was a case in which stay should not be granted When the petitioner persisted in his argument, it is said that Mr. Justice Nigam observed "Dont waste the time of the Court". The petitioner still persisted and wanted to refer to the grounds in the petition which was filed by him on behalf of his client. The learned judge, it is said, observed that the petitioner might amend the writ petition. Thereafter, there was some more argument and the learned judge, it is said, observed that the petitioner was going beyond the writ petition. The petitioner then represented that he had taken the point which he was arguing in the petition whereupon Mr. Justice Nigam asked the petitioner to point out the paragraph in which the particular point was taken. It appears that further discussion was carried on between the Bar and the Bench. The petitioner then read out some grounds. He also referred to what he called a synopsis of the authorities in support of the said petition. On that the judge protested and said that the list of authorities should have been given to the Reader. But according to the petitioner the "Readers of the Court sometimes liked it and sometimes did not like it". On that it is said that Mr. Justice Nigam again observed that the petitioner was wasting the time of the Court. The petitioner then broke out into a peroration and the learned judge was moved into saying "Do not give us a sermon". Then it is said that Mr. Justice Nigam again said after some time "Dont waste time. Go away".3. It seems that the appellant took umbrage when Mr. Justice Nigam said, according to the petitioner, "Go away, I say". The petitioner says that he protested and persisted in his argument. Thereafter the petitioner sought to present a memorandum of a petition seeking to make written submissions to the Court which had heard the writ petition. But his petition was not accepted, because the time for entertaining petitions was over. There was a further hearing and Mr. Justice Nigam, the petitioner says, said several times "Go on, go on, go on". The petitioner being of the view, that the statements made by Mr. Justice Nigam amounted to contempt of his own Court by him in that he had insulted the petitioner when the petitioner was performing his duties as an Advocate moved a petition before the Chief Justice of the High Court requesting him to take appropriate action. The learned Chief Justice rejected the petition and against the order rejecting the petition an appeal was preferred, which was also dismissed as incompetent. An application for a certificate to move this Court was also rejected.4. From the statements which have been made in Para.8 to 33 under the heading "Narrative" in S. L P. (Cr) No. 381 of 1968, it appears clear that by his persistence and aggressive advocacy in a case of little importance the petitioner had sorely tried the patience of the judge and if in the heat of the moment as the petitioner contends the judge used some expressions like "Go away" or that "You are wasting the time of the Court" (on the truth of that statement we express no opinion), we do not think that any case is made out for taking proceedings for contempt against the judge for contempt of the High Court. From the way in which the proceedings were commenced before the High Court and the way in which they have been persisted throughout and, if we can guess, from the manner in which the argument was presented in this Court for more than one and three quarters of an hour we have no doubt that a trifling incident in Court was magnified out of all proportions by the petitioner and he filed a petition in the High Court and an appeal before the Division Bench and a special leave petition in this Court. We have no doubt that Mr. Justice Nigam never intended to insult the petitioner. The petitioner has been unduly sensitive. We do not feel called upon in this case to express an opinion on the question whether a judge of a court of record may be held guilty of contempt when presiding in Court.5. We think that no case is made out for taking proceedings in contempt. We do not propose to decide the question whether against the order issued by the learned Chief Justice an appeal lay to the Division Bench, nor do we think it necessary to go into the question whether the learned Chief Justice in disposing of the application acted improperly in rejecting the petition without a speaking order and not making his order in open court.
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4. From the statements which have been made in Para.8 to 33 under the heading "Narrative" in S. L P. (Cr) No. 381 of 1968, it appears clear that by his persistence and aggressive advocacy in a case of little importance the petitioner had sorely tried the patience of the judge and if in the heat of the moment as the petitioner contends the judge used some expressions like "Go away" or that "You are wasting the time of the Court" (on the truth of that statement we express no opinion), we do not think that any case is made out for taking proceedings for contempt against the judge for contempt of the High Court. From the way in which the proceedings were commenced before the High Court and the way in which they have been persisted throughout and, if we can guess, from the manner in which the argument was presented in this Court for more than one and three quarters of an hour we have no doubt that a trifling incident in Court was magnified out of all proportions by the petitioner and he filed a petition in the High Court and an appeal before the Division Bench and a special leave petition in this Court. We have no doubt that Mr. Justice Nigam never intended to insult the petitioner. The petitioner has been unduly sensitive. We do not feel called upon in this case to express an opinion on the question whether a judge of a court of record may be held guilty of contempt when presiding in Court.5. We think that no case is made out for taking proceedings in contempt. We do not propose to decide the question whether against the order issued by the learned Chief Justice an appeal lay to the Division Bench, nor do we think it necessary to go into the question whether the learned Chief Justice in disposing of the application acted improperly in rejecting the petition without a speaking order and not making his order in open court.
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Poona Mazoor Sabha Vs. G.K. Dhutia & Another
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between the parties, does the fact that there is a binding settlement between the parties under S. 19(3) prevent one of the parties to that settlement from raising an industrial dispute It may be said that there is no specific provision in the Act which lays down that an industrial dispute cannot be raised with regard to a matter which is the subject of a settlement under S. 12 read with S. 19(2). But in our opinion what we have to consider is the effect of the Legislature providing that under S. 19(2) a settlement arrived at in the course of a conciliation shall be binding for such period as is agreed upon by the parties, and if no such period is agreed upon, for a period of six months; and that section also provides for a proper notice being given terminating the settlement after the expiry of the period mentioned in the earlier part of the section.When the Legislature provides for a particular agreement being binding upon the parties to an industrial dispute, it clearly intends that there is industrial peace with regard to the subject matter of the agreement for the duration of that agreement, and it is obvious that if there is to be industrial peace for the period contemplated then neither party to that settlement can be allowed to raise an industrial dispute with regard to that settlement.5. Considerable light is also thrown upon the proper construction of S. 19(2) by the provisions contained in that section with regard to an award. An award is a super-imposed decision and the parties to the award have to abide by it whether they like the terms of the award or riot, and in the case of an award specific powers are given to Government to curtail its duration, to extend it, and in cases where Government considers that since the award was made there has been a material change in the circumstances on which it was based, to refer the award or part of it to a Tribunal for decision whether the period of operation should not by reason of such change be shortened.Therefore it is clear that but for this specific provision with regard to an award the position of an award in law would have been the same as that of a settlement. An award being as binding in its nature as a settlement, the Legislature had to give specific power to the Government to interfere with the finality of that award by empowering Government to refer it to a Tribunal under circumstances mentioned in S. 19(4).But the Legislature advisedly did not confer that power upon Government with regard to a settlement arrived at between the parties, and the reason for the Legislature not doing so in obvious. As already said, an award is not the result of an agreement between the parties. It is something super-imposed upon them by the force majeure off law. But a settlement is a purely voluntary matter and parties may or may not arrive at a settlement.But when parties do arrive at a settlement the law gives to it a greater sanctity than it gives to an award, and therefore the industrial law does not contemplate any interference with the finality of a settlement and it compels the settlement to run! on for the period mentioned in the settlement itself and neither party is permitted to challenge that settlement during its duration.If the subject matter of an award or a settlement could be raised as an industrial dispute, then it is clear that there was no reason for the Legislature specifically to confer power upon Government with regard to referring an award for adjudication.In the absence of any such specific provision, with regard to a settlement, it is clear in our opinion that neither any industrial dispute can be raised with regard to the settlement nor can matters covered by that settlement form the subject matter of conciliation proceedings under S. 12.6. In taking the view that we are, we are not deciding anything which is prejudicial to the rights of labour. If we were to accept the contention put forward by Mr. Bhandare, it would become extremely difficult for employer and employees to arrive at any settlement without first going to a conciliation officer.If the law was that a private settlement of an industrial dispute could not be arrived at which could be recorded by the conciliation officer and which could be made binding, then it would be very difficult to induce parties to arrive at any such settlement, because the whole of Mr. Bhandares argument revolves round this that it was open to the workers of the second opponent company the next day after they had arrived at this agreement, to resile from that agreement.Industrial peace demands that sanctity should be attached to agreements freely arrived at by the parties and if the view went abroad that private settlements have no sanctity whatsoever, then there would be little chance of disputes ending by settlement between the parties. It will indeed be extremely unfortunate from the point of view of labour.7. Mr. Seervai has also raised the point that under S. 12 it is discretionary with the conciliation officer to hold conciliation proceedings or not. It is only when the dispute relates to a public utility service and a notice under S. 22 has been given that there is a statutory duty cast upon him to hold conciliation proceedings.Although the conciliation officer has a discretion, it is obvious that that discretion cannot be arbitrarily or capriciously exercised, and if we had agreed with the contention put forward by Mr. Bhandare then we would certainly have required the conciliation officer to consider the question on merits and exercise his discretion as required by the statute. But inasmuch we have taken the view that conciliation proceedings cannot be initiated when there is a settlement in force, the question of the exercise of the discretion of the conciliation officer does not arise.
|
0[ds]We will assume for the sake of this argument that there was an agreement arrived at between the parties antecedent toand on this assumption we have to ask ourselves the question whether that would exclude the jurisdiction of the conciliation officer to record the settlement arrivedthe eye of the industrial law, in our opinion, an industrial dispute does not end until a settlement is arrived at which settlement has been given a binding effect under the provisions of S. 19(2), and such a settlement can only be arrived at when conciliation proceedings are held under S. 12.Therefore, it would not be true to say that the industrial dispute ended with the settlement arrived at between the parties onthat the conciliation officer had no jurisdiction to record the settlement, and that in raising another dispute in June 1955, the Union was raising a dispute which was not and could not be the subject matter of a settlement contemplated by S. 12 and S.the absence of any such specific provision, with regard to a settlement, it is clear in our opinion that neither any industrial dispute can be raised with regard to the settlement nor can matters covered by that settlement form the subject matter of conciliation proceedings under S. 12.In taking the view that we are, we are not deciding anything which is prejudicial to the rights of labour. If we were to accept the contention put forward by Mr. Bhandare, it would become extremely difficult for employer and employees to arrive at any settlement without first going to a conciliation officer.If the law was that a private settlement of an industrial dispute could not be arrived at which could be recorded by the conciliation officer and which could be made binding, then it would be very difficult to induce parties to arrive at any such settlement, because the whole of Mr. Bhandares argument revolves round this that it was open to the workers of the second opponent company the next day after they had arrived at this agreement, to resile from that agreement.Industrial peace demands that sanctity should be attached to agreements freely arrived at by the parties and if the view went abroad that private settlements have no sanctity whatsoever, then there would be little chance of disputes ending by settlement between the parties. It will indeed be extremely unfortunate from the point of view ofis only when the dispute relates to a public utility service and a notice under S. 22 has been given that there is a statutory duty cast upon him to hold conciliation proceedings.Although the conciliation officer has a discretion, it is obvious that that discretion cannot be arbitrarily or capriciously exercised, and if we had agreed with the contention put forward by Mr. Bhandare then we would certainly have required the conciliation officer to consider the question on merits and exercise his discretion as required by the statute. But inasmuch we have taken the view that conciliation proceedings cannot be initiated when there is a settlement in force, the question of the exercise of the discretion of the conciliation officer does not arise.
| 0 | 2,325 | 549 |
### 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:
between the parties, does the fact that there is a binding settlement between the parties under S. 19(3) prevent one of the parties to that settlement from raising an industrial dispute It may be said that there is no specific provision in the Act which lays down that an industrial dispute cannot be raised with regard to a matter which is the subject of a settlement under S. 12 read with S. 19(2). But in our opinion what we have to consider is the effect of the Legislature providing that under S. 19(2) a settlement arrived at in the course of a conciliation shall be binding for such period as is agreed upon by the parties, and if no such period is agreed upon, for a period of six months; and that section also provides for a proper notice being given terminating the settlement after the expiry of the period mentioned in the earlier part of the section.When the Legislature provides for a particular agreement being binding upon the parties to an industrial dispute, it clearly intends that there is industrial peace with regard to the subject matter of the agreement for the duration of that agreement, and it is obvious that if there is to be industrial peace for the period contemplated then neither party to that settlement can be allowed to raise an industrial dispute with regard to that settlement.5. Considerable light is also thrown upon the proper construction of S. 19(2) by the provisions contained in that section with regard to an award. An award is a super-imposed decision and the parties to the award have to abide by it whether they like the terms of the award or riot, and in the case of an award specific powers are given to Government to curtail its duration, to extend it, and in cases where Government considers that since the award was made there has been a material change in the circumstances on which it was based, to refer the award or part of it to a Tribunal for decision whether the period of operation should not by reason of such change be shortened.Therefore it is clear that but for this specific provision with regard to an award the position of an award in law would have been the same as that of a settlement. An award being as binding in its nature as a settlement, the Legislature had to give specific power to the Government to interfere with the finality of that award by empowering Government to refer it to a Tribunal under circumstances mentioned in S. 19(4).But the Legislature advisedly did not confer that power upon Government with regard to a settlement arrived at between the parties, and the reason for the Legislature not doing so in obvious. As already said, an award is not the result of an agreement between the parties. It is something super-imposed upon them by the force majeure off law. But a settlement is a purely voluntary matter and parties may or may not arrive at a settlement.But when parties do arrive at a settlement the law gives to it a greater sanctity than it gives to an award, and therefore the industrial law does not contemplate any interference with the finality of a settlement and it compels the settlement to run! on for the period mentioned in the settlement itself and neither party is permitted to challenge that settlement during its duration.If the subject matter of an award or a settlement could be raised as an industrial dispute, then it is clear that there was no reason for the Legislature specifically to confer power upon Government with regard to referring an award for adjudication.In the absence of any such specific provision, with regard to a settlement, it is clear in our opinion that neither any industrial dispute can be raised with regard to the settlement nor can matters covered by that settlement form the subject matter of conciliation proceedings under S. 12.6. In taking the view that we are, we are not deciding anything which is prejudicial to the rights of labour. If we were to accept the contention put forward by Mr. Bhandare, it would become extremely difficult for employer and employees to arrive at any settlement without first going to a conciliation officer.If the law was that a private settlement of an industrial dispute could not be arrived at which could be recorded by the conciliation officer and which could be made binding, then it would be very difficult to induce parties to arrive at any such settlement, because the whole of Mr. Bhandares argument revolves round this that it was open to the workers of the second opponent company the next day after they had arrived at this agreement, to resile from that agreement.Industrial peace demands that sanctity should be attached to agreements freely arrived at by the parties and if the view went abroad that private settlements have no sanctity whatsoever, then there would be little chance of disputes ending by settlement between the parties. It will indeed be extremely unfortunate from the point of view of labour.7. Mr. Seervai has also raised the point that under S. 12 it is discretionary with the conciliation officer to hold conciliation proceedings or not. It is only when the dispute relates to a public utility service and a notice under S. 22 has been given that there is a statutory duty cast upon him to hold conciliation proceedings.Although the conciliation officer has a discretion, it is obvious that that discretion cannot be arbitrarily or capriciously exercised, and if we had agreed with the contention put forward by Mr. Bhandare then we would certainly have required the conciliation officer to consider the question on merits and exercise his discretion as required by the statute. But inasmuch we have taken the view that conciliation proceedings cannot be initiated when there is a settlement in force, the question of the exercise of the discretion of the conciliation officer does not arise.
### Response:
0
### Explanation:
We will assume for the sake of this argument that there was an agreement arrived at between the parties antecedent toand on this assumption we have to ask ourselves the question whether that would exclude the jurisdiction of the conciliation officer to record the settlement arrivedthe eye of the industrial law, in our opinion, an industrial dispute does not end until a settlement is arrived at which settlement has been given a binding effect under the provisions of S. 19(2), and such a settlement can only be arrived at when conciliation proceedings are held under S. 12.Therefore, it would not be true to say that the industrial dispute ended with the settlement arrived at between the parties onthat the conciliation officer had no jurisdiction to record the settlement, and that in raising another dispute in June 1955, the Union was raising a dispute which was not and could not be the subject matter of a settlement contemplated by S. 12 and S.the absence of any such specific provision, with regard to a settlement, it is clear in our opinion that neither any industrial dispute can be raised with regard to the settlement nor can matters covered by that settlement form the subject matter of conciliation proceedings under S. 12.In taking the view that we are, we are not deciding anything which is prejudicial to the rights of labour. If we were to accept the contention put forward by Mr. Bhandare, it would become extremely difficult for employer and employees to arrive at any settlement without first going to a conciliation officer.If the law was that a private settlement of an industrial dispute could not be arrived at which could be recorded by the conciliation officer and which could be made binding, then it would be very difficult to induce parties to arrive at any such settlement, because the whole of Mr. Bhandares argument revolves round this that it was open to the workers of the second opponent company the next day after they had arrived at this agreement, to resile from that agreement.Industrial peace demands that sanctity should be attached to agreements freely arrived at by the parties and if the view went abroad that private settlements have no sanctity whatsoever, then there would be little chance of disputes ending by settlement between the parties. It will indeed be extremely unfortunate from the point of view ofis only when the dispute relates to a public utility service and a notice under S. 22 has been given that there is a statutory duty cast upon him to hold conciliation proceedings.Although the conciliation officer has a discretion, it is obvious that that discretion cannot be arbitrarily or capriciously exercised, and if we had agreed with the contention put forward by Mr. Bhandare then we would certainly have required the conciliation officer to consider the question on merits and exercise his discretion as required by the statute. But inasmuch we have taken the view that conciliation proceedings cannot be initiated when there is a settlement in force, the question of the exercise of the discretion of the conciliation officer does not arise.
|
Dr. M. Furquan Vs. Jet Airways India Limited Through Its Chairman & Others
|
overstep the limits of its judicial function and trespass into areas, which are reserved, to the executive and the legislature by the Constitution. It is a fascinating exercise for the court to deal with public interest litigation because it is new jurisprudence, which the court is evolving, a jurisprudence that demands judicial statesmanship and high creative ability. The frontiers of public law are expanding far and wide and new concepts and doctrines which will change the complexion of the law and which were so far as embedded in the womb of the future, are beginning to be born. The courts while exercising jurisdiction and deciding public interest litigation have to take great care, primarily for the reason that this wide jurisdiction should not become a source of abuse of process of law by a disgruntled litigant. The courts have also held that no efforts should be spared in fostering and developing the laudable concept of PIL and extending its long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed. It has to be a genuine litigation, unmotivated and imposes an obligation upon a litigant to come to the court with true facts and clean hands. Public interest litigations result in taking large courts time, which could not be used by the court for the benefit of common litigant. Thus it is more imperative that petitions, which are bona fide and further the public cause alone should be entertained in this category. In the case of Ashok Kumar Pandey vs State of W.B, 2004(3) SCC 349 the Supreme Court has held that the court has to strike a balance between two conflicting interests, (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In this very judgment the Court further enunciated that the principles of credentials of the applicant; prima facie correctness and nature of information given by him and also that the information is not vague and indefinite, are the criteria, which the litigant should satisfy. The scope and gravity of the grievance is another relevant consideration for the court to entertain such litigations. If these ingredients are lacking, the Supreme Court further said that the courts should not entertain such public interest litigations. Similar view was also taken in the case of Gurpal Singh vs State of Punjab and ors, 2005(5) SCC 136. It is also true that a petition involving the question of public interest must be directly relatable to actual interest of the public at large, which has to be a substantial interest. It is not the title of the petition, which would satisfy the ingredients of public interest litigation, but it is the substance of the petition, which would be the determinative factor. The documents relied upon by the petitioner in this petition are similar which were relied upon by him in PIL No. 5 of 2006. Thereafter commonly known facts, which a keen public interest oriented person like the petitioner is expected to know, are published and were even made available in the internet. When called upon by the authorities to produce documents or give details of his suspicion, all that the petitioner did was to tender a copy of the secret letter dated 12th December 2001. In the press report annexed by the petitioner, it was stated that the Ministry of Home Affairs had sought inputs from different agencies. It was thereafter that the Ministry issued the no objection and even at the floor of the House of Loksabha a statement was made. Even the Government of United States of America had given clearance to the respondent company as per the communication dated 14th October 2006. All these events are prior to the institution of the present petition and the petitioner, for reason best known to him, failed to disclose an of them in the writ petition. In our opinion, it was expected of the petitioner to give available facts before raising issues of such serious nature relating to national security, the alleged supply of funds by the underworld, its effect on the economy of the country and investigation by CBI into the links of the respondent company to the underworld. In the writ petition the petitioner has made one prayer alone that the CBI should be directed to investigate the matter forthwith. What matter needs to be investigated in face of the permission granted by the different authorities, including the Ministry of Home Affairs and the inputs by the investigating agencies. The public interest litigation cannot be extended to create what in the opinion of the authority does 0265 not exist. We are of the considered view that the petitioner has not come to the court satisfying the basic ingredients of equity and essentials stated in the dictum of the Supreme Court judgment in Ashok Kumar Pandeys case (supra). In the rejoinder filed on behalf of the petitioner except vague denials, nothing of substance has been stated in relation to the permission granted by US Department of Transportation. It is averred that he is not aware of such fact. This attitude of the petitioner is not in conformity with the requirements of law of pleading, particularly when the petitioner has chosen to make serious allegations against respondent No.1. Accepted precepts of law of pleading contemplate definite efforts on the part of the petitioner and to appropriately admit or deny the averments made in the reply affidavits. None of the authorities have, in their affidavits, even vaguely supported the version of the petitioner. On the contrary there are definite decisions of the competent authorities for granting no objection to the respondent company. We see no reason to issue any directions as prayed for by the petitioner in the present petition and the same is dismissed with no order as to costs.
|
0[ds]The courts while exercising jurisdiction and deciding public interest litigation have to take great care, primarily for the reason that this wide jurisdiction should not become a source of abuse of process of law by a disgruntled litigant. The courts have also held that no efforts should be spared in fostering and developing the laudable concept of PIL and extending its long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed. It has to be a genuine litigation, unmotivated and imposes an obligation upon a litigant to come to the court with true facts and clean hands. Public interest litigations result in taking large courts time, which could not be used by the court for the benefit of common litigant. Thus it is more imperative that petitions, which are bona fide and further the public cause alone should be entertained in this category. In the case of Ashok Kumar Pandey vs State of W.B, 2004(3) SCC 349 the Supreme Court has held that the court has to strike a balance between two conflicting interests, (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In this very judgment the Court further enunciated that the principles of credentials of the applicant; prima facie correctness and nature of information given by him and also that the information is not vague and indefinite, are the criteria, which the litigant should satisfy. The scope and gravity of the grievance is another relevant consideration for the court to entertain such litigations. If these ingredients are lacking, the Supreme Court further said that the courts should not entertain such public interest litigations. Similar view was also taken in the case of Gurpal Singh vs State of Punjab and ors, 2005(5) SCC 136. It is also true that a petition involving the question of public interest must be directly relatable to actual interest of the public at large, which has to be a substantial interest. It is not the title of the petition, which would satisfy the ingredients of public interest litigation, but it is the substance of the petition, which would be the determinative factor. The documents relied upon by the petitioner in this petition are similar which were relied upon by him in PIL No. 5 of 2006. Thereafter commonly known facts, which a keen public interest oriented person like the petitioner is expected to know, are published and were even made available in the internet. When called upon by the authorities to produce documents or give details of his suspicion, all that the petitioner did was to tender a copy of the secret letter dated 12th December 2001. In the press report annexed by the petitioner, it was stated that the Ministry of Home Affairs had sought inputs from different agencies. It was thereafter that the Ministry issued the no objection and even at the floor of the House of Loksabha a statement was made. Even the Government of United States of America had given clearance to the respondent company as per the communication dated 14th October 2006. All these events are prior to the institution of the present petition and the petitioner, for reason best known to him, failed to disclose an of them in the writ petition. In our opinion, it was expected of the petitioner to give available facts before raising issues of such serious nature relating to national security, the alleged supply of funds by the underworld, its effect on the economy of the country and investigation by CBI into the links of the respondent company to the underworld. In the writ petition the petitioner has made one prayer alone that the CBI should be directed to investigate the matter forthwith. What matter needs to be investigated in face of the permission granted by the different authorities, including the Ministry of Home Affairs and the inputs by the investigating agencies. The public interest litigation cannot be extended to create what in the opinion of the authority does 0265 not exist. We are of the considered view that the petitioner has not come to the court satisfying the basic ingredients of equity and essentials stated in the dictum of the Supreme Court judgment in Ashok Kumar Pandeys case (supra). In the rejoinder filed on behalf of the petitioner except vague denials, nothing of substance has been stated in relation to the permission granted by US Department of Transportation. It is averred that he is not aware of such fact. This attitude of the petitioner is not in conformity with the requirements of law of pleading, particularly when the petitioner has chosen to make serious allegations against respondent No.1. Accepted precepts of law of pleading contemplate definite efforts on the part of the petitioner and to appropriately admit or deny the averments made in the reply affidavits. None of the authorities have, in their affidavits, even vaguely supported the version of the petitioner. On the contrary there are definite decisions of the competent authorities for granting no objection to the respondent company. We see no reason to issue any directions as prayed for by the petitioner in the present petition and the same is dismissed with no order as to costs.
| 0 | 5,313 | 984 |
### 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:
overstep the limits of its judicial function and trespass into areas, which are reserved, to the executive and the legislature by the Constitution. It is a fascinating exercise for the court to deal with public interest litigation because it is new jurisprudence, which the court is evolving, a jurisprudence that demands judicial statesmanship and high creative ability. The frontiers of public law are expanding far and wide and new concepts and doctrines which will change the complexion of the law and which were so far as embedded in the womb of the future, are beginning to be born. The courts while exercising jurisdiction and deciding public interest litigation have to take great care, primarily for the reason that this wide jurisdiction should not become a source of abuse of process of law by a disgruntled litigant. The courts have also held that no efforts should be spared in fostering and developing the laudable concept of PIL and extending its long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed. It has to be a genuine litigation, unmotivated and imposes an obligation upon a litigant to come to the court with true facts and clean hands. Public interest litigations result in taking large courts time, which could not be used by the court for the benefit of common litigant. Thus it is more imperative that petitions, which are bona fide and further the public cause alone should be entertained in this category. In the case of Ashok Kumar Pandey vs State of W.B, 2004(3) SCC 349 the Supreme Court has held that the court has to strike a balance between two conflicting interests, (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In this very judgment the Court further enunciated that the principles of credentials of the applicant; prima facie correctness and nature of information given by him and also that the information is not vague and indefinite, are the criteria, which the litigant should satisfy. The scope and gravity of the grievance is another relevant consideration for the court to entertain such litigations. If these ingredients are lacking, the Supreme Court further said that the courts should not entertain such public interest litigations. Similar view was also taken in the case of Gurpal Singh vs State of Punjab and ors, 2005(5) SCC 136. It is also true that a petition involving the question of public interest must be directly relatable to actual interest of the public at large, which has to be a substantial interest. It is not the title of the petition, which would satisfy the ingredients of public interest litigation, but it is the substance of the petition, which would be the determinative factor. The documents relied upon by the petitioner in this petition are similar which were relied upon by him in PIL No. 5 of 2006. Thereafter commonly known facts, which a keen public interest oriented person like the petitioner is expected to know, are published and were even made available in the internet. When called upon by the authorities to produce documents or give details of his suspicion, all that the petitioner did was to tender a copy of the secret letter dated 12th December 2001. In the press report annexed by the petitioner, it was stated that the Ministry of Home Affairs had sought inputs from different agencies. It was thereafter that the Ministry issued the no objection and even at the floor of the House of Loksabha a statement was made. Even the Government of United States of America had given clearance to the respondent company as per the communication dated 14th October 2006. All these events are prior to the institution of the present petition and the petitioner, for reason best known to him, failed to disclose an of them in the writ petition. In our opinion, it was expected of the petitioner to give available facts before raising issues of such serious nature relating to national security, the alleged supply of funds by the underworld, its effect on the economy of the country and investigation by CBI into the links of the respondent company to the underworld. In the writ petition the petitioner has made one prayer alone that the CBI should be directed to investigate the matter forthwith. What matter needs to be investigated in face of the permission granted by the different authorities, including the Ministry of Home Affairs and the inputs by the investigating agencies. The public interest litigation cannot be extended to create what in the opinion of the authority does 0265 not exist. We are of the considered view that the petitioner has not come to the court satisfying the basic ingredients of equity and essentials stated in the dictum of the Supreme Court judgment in Ashok Kumar Pandeys case (supra). In the rejoinder filed on behalf of the petitioner except vague denials, nothing of substance has been stated in relation to the permission granted by US Department of Transportation. It is averred that he is not aware of such fact. This attitude of the petitioner is not in conformity with the requirements of law of pleading, particularly when the petitioner has chosen to make serious allegations against respondent No.1. Accepted precepts of law of pleading contemplate definite efforts on the part of the petitioner and to appropriately admit or deny the averments made in the reply affidavits. None of the authorities have, in their affidavits, even vaguely supported the version of the petitioner. On the contrary there are definite decisions of the competent authorities for granting no objection to the respondent company. We see no reason to issue any directions as prayed for by the petitioner in the present petition and the same is dismissed with no order as to costs.
### Response:
0
### Explanation:
The courts while exercising jurisdiction and deciding public interest litigation have to take great care, primarily for the reason that this wide jurisdiction should not become a source of abuse of process of law by a disgruntled litigant. The courts have also held that no efforts should be spared in fostering and developing the laudable concept of PIL and extending its long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed. It has to be a genuine litigation, unmotivated and imposes an obligation upon a litigant to come to the court with true facts and clean hands. Public interest litigations result in taking large courts time, which could not be used by the court for the benefit of common litigant. Thus it is more imperative that petitions, which are bona fide and further the public cause alone should be entertained in this category. In the case of Ashok Kumar Pandey vs State of W.B, 2004(3) SCC 349 the Supreme Court has held that the court has to strike a balance between two conflicting interests, (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In this very judgment the Court further enunciated that the principles of credentials of the applicant; prima facie correctness and nature of information given by him and also that the information is not vague and indefinite, are the criteria, which the litigant should satisfy. The scope and gravity of the grievance is another relevant consideration for the court to entertain such litigations. If these ingredients are lacking, the Supreme Court further said that the courts should not entertain such public interest litigations. Similar view was also taken in the case of Gurpal Singh vs State of Punjab and ors, 2005(5) SCC 136. It is also true that a petition involving the question of public interest must be directly relatable to actual interest of the public at large, which has to be a substantial interest. It is not the title of the petition, which would satisfy the ingredients of public interest litigation, but it is the substance of the petition, which would be the determinative factor. The documents relied upon by the petitioner in this petition are similar which were relied upon by him in PIL No. 5 of 2006. Thereafter commonly known facts, which a keen public interest oriented person like the petitioner is expected to know, are published and were even made available in the internet. When called upon by the authorities to produce documents or give details of his suspicion, all that the petitioner did was to tender a copy of the secret letter dated 12th December 2001. In the press report annexed by the petitioner, it was stated that the Ministry of Home Affairs had sought inputs from different agencies. It was thereafter that the Ministry issued the no objection and even at the floor of the House of Loksabha a statement was made. Even the Government of United States of America had given clearance to the respondent company as per the communication dated 14th October 2006. All these events are prior to the institution of the present petition and the petitioner, for reason best known to him, failed to disclose an of them in the writ petition. In our opinion, it was expected of the petitioner to give available facts before raising issues of such serious nature relating to national security, the alleged supply of funds by the underworld, its effect on the economy of the country and investigation by CBI into the links of the respondent company to the underworld. In the writ petition the petitioner has made one prayer alone that the CBI should be directed to investigate the matter forthwith. What matter needs to be investigated in face of the permission granted by the different authorities, including the Ministry of Home Affairs and the inputs by the investigating agencies. The public interest litigation cannot be extended to create what in the opinion of the authority does 0265 not exist. We are of the considered view that the petitioner has not come to the court satisfying the basic ingredients of equity and essentials stated in the dictum of the Supreme Court judgment in Ashok Kumar Pandeys case (supra). In the rejoinder filed on behalf of the petitioner except vague denials, nothing of substance has been stated in relation to the permission granted by US Department of Transportation. It is averred that he is not aware of such fact. This attitude of the petitioner is not in conformity with the requirements of law of pleading, particularly when the petitioner has chosen to make serious allegations against respondent No.1. Accepted precepts of law of pleading contemplate definite efforts on the part of the petitioner and to appropriately admit or deny the averments made in the reply affidavits. None of the authorities have, in their affidavits, even vaguely supported the version of the petitioner. On the contrary there are definite decisions of the competent authorities for granting no objection to the respondent company. We see no reason to issue any directions as prayed for by the petitioner in the present petition and the same is dismissed with no order as to costs.
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Firestone Tyre and Rubber Company Vs. Its Workmen and Another
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wages paid to them are far below the standard of the living wage and the available surplus in the hand of the company is so large that the whole of the claim for bonus made by them should have been awarded.2. This appeals were heard by us along with Civil Appeals Nos. 416 of 1958 and 19 of 1959 - Standard Vacuum Refining Company of India, Ltd. v. Its workmen and vice versa [1961 - I L.L.J. 227] (reported supra) in which we have just pronounced our judgment. Indeed the learned Attorney-General, who appeared for the appellant in this case, also urged substantially the same arguments as in Civil Appeal No. 416 of 1958. We have held in Civil Appeal No. 416 of 1958 that even the average wages amounting to Rs. 370 and odd are much below the standard of a living wage. That being so, it must follow that the plea made by the company in the present appeal cannot be sustained. In the statement filed by the company before the tribunal it first contended that the average wage was of the order of Rs. 217 per month, but this included the amount of bonus for two months paid by the company and the said amount must obviously be excluded from working out the average of the wage-structure. It is conceded that if the amount of bonus is thus deducted, the average bill would be Rs. 200 per month. Therefore, for the reasons given by us in the Civil Appeal No. 416 of 1958 we must hold that the company has failed to establish its plea that it is paying a living wage to its workmen.Then, as regards the workmens appeal, it has been strenuously contended before us by Mr. Dudhia that the tribunal was not justified in awarding such a low bonus as five months basic wages. In support of this contention Mr. Dudhia has naturally relied on the past history of the payment of bonus between the parties. Looking at the said history covered by the period between 1948-49 to 1956-57 it appears that the minimum bonus paid was four months basic wages in 1948-49 when the profits were Rs. 122 lakhs, whereas the maximum bonus paid was six months basic wages in 1955-56, the figures of profits not being disclosed on the record. During the rest of the period the profits have no doubt fluctuated but they have never gone below Rs. 121 lakhs and have reached the peak of Rs. 213 lakhs in one year. It has been found by the tribunal that the profits for the relevant year are higher than 1955-56 when six months basic wages were awarded as bonus. Prima facie the workmen are, therefore, justified in contending that at least six months bonus should have been paid to them; and that has been the principal argument urged before us both by Mr. Dudhia and by Mr. Gokhale.3. In the case of the Standard Vacuum Refining Company [Civil Appeal No. 416 of 1958 : 1961 - I L.L.J. 227] (reported supra) we have considered this question at some length, and we have pointed out that unless the discretion vesting in the tribunal is shown to have been improperly or unreasonably exercised we would not be justified in interfering with its award. Let us, therefore, set out the reasons given by the tribunal in support of its conclusion. The tribunal has observed that the company has always paid bonus at the same rate in terms of monthly wages to operatives, clerks, supervisory staffs and even some of the officers. Then the tribunal proceeded to examine the economic effects of the awards of bonus on the community; and it has noticed the repercussions of the award of six months wages as bonus to the companys employees on other industries in the region. It is observed that after six months basic wages were awarded to the workmen similar claims began to be made by other employees, and that is a factor which the tribunal thought had to be taken into account. The tribunal then addressed itself to the argument of the company that productivity had decreased, and held that the said contention was not justified. It, however, noticed that the figures of absenteeism in the company were undoubtedly high though it was not inclined to draw any substantial inference from the said fact without a scientific investigation into the circumstances and clauses of absenteeism. It then examined the argument of the workmen that fabulous salaries are paid by the company to its directors and its higher officers. It also noticed the argument of the company that no dividend had been declared for the relevant year. Having thus considered all the relevant factors including the wage-structure prevailing in the company, the tribunal observed :"giving careful consideration to the contention of both side, and having regard to all the facts in the case, I have come to the conclusion that bonus equal to five-twelfths of the basic wages to the workmen would be quite adequate. As observed above, a higher bonus than this is certainly not indicated."4. On the other hand, it held that a lower bonus was clearly ruled out. It is possible that if we were dealing with the question of the quantum of bonus ourselves for the first time, we may have been inclined to uphold the workmens claim for six months basic wages for the relevant year; but, as we have repeatedly pointed out, we would not be justified in interfering with awards of this kind merely because we might have awarded a little more or a little less. Our interference would be justified only if we are satisfied that the award suffers from a serious infirmity, and that the tribunal has failed to consider the necessary relevant facts. We have carefully considered the contentions raised before us by the workmen, but on the whole we are not inclined to interfere with the award made by the tribunal in the present case.5.
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0[ds]That being so, it must follow that the plea made by the company in the present appeal cannot befor the reasons given by us in the Civil Appeal No. 416 of 1958 we must hold that the company has failed to establish its plea that it is paying a living wage to itsthe rest of the period the profits have no doubt fluctuated but they have never gone below Rs. 121 lakhs and have reached the peak of Rs. 213 lakhs in one year. It has been found by the tribunal that the profits for the relevant year are higher than 1955-56 when six months basic wages were awarded as bonus. Prima facie the workmen are, therefore, justified in contending that at least six months bonus should have been paid to them; and that has been the principal argument urged before us both by Mr. Dudhia and by Mr.is possible that if we were dealing with the question of the quantum of bonus ourselves for the first time, we may have been inclined to uphold the workmens claim for six months basic wages for the relevant year; but, as we have repeatedly pointed out, we would not be justified in interfering with awards of this kind merely because we might have awarded a little more or a little less. Our interference would be justified only if we are satisfied that the award suffers from a serious infirmity, and that the tribunal has failed to consider the necessary relevant facts. We have carefully considered the contentions raised before us by the workmen, but on the whole we are not inclined to interfere with the award made by the tribunal in the present case.
| 0 | 1,319 | 305 |
### 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:
wages paid to them are far below the standard of the living wage and the available surplus in the hand of the company is so large that the whole of the claim for bonus made by them should have been awarded.2. This appeals were heard by us along with Civil Appeals Nos. 416 of 1958 and 19 of 1959 - Standard Vacuum Refining Company of India, Ltd. v. Its workmen and vice versa [1961 - I L.L.J. 227] (reported supra) in which we have just pronounced our judgment. Indeed the learned Attorney-General, who appeared for the appellant in this case, also urged substantially the same arguments as in Civil Appeal No. 416 of 1958. We have held in Civil Appeal No. 416 of 1958 that even the average wages amounting to Rs. 370 and odd are much below the standard of a living wage. That being so, it must follow that the plea made by the company in the present appeal cannot be sustained. In the statement filed by the company before the tribunal it first contended that the average wage was of the order of Rs. 217 per month, but this included the amount of bonus for two months paid by the company and the said amount must obviously be excluded from working out the average of the wage-structure. It is conceded that if the amount of bonus is thus deducted, the average bill would be Rs. 200 per month. Therefore, for the reasons given by us in the Civil Appeal No. 416 of 1958 we must hold that the company has failed to establish its plea that it is paying a living wage to its workmen.Then, as regards the workmens appeal, it has been strenuously contended before us by Mr. Dudhia that the tribunal was not justified in awarding such a low bonus as five months basic wages. In support of this contention Mr. Dudhia has naturally relied on the past history of the payment of bonus between the parties. Looking at the said history covered by the period between 1948-49 to 1956-57 it appears that the minimum bonus paid was four months basic wages in 1948-49 when the profits were Rs. 122 lakhs, whereas the maximum bonus paid was six months basic wages in 1955-56, the figures of profits not being disclosed on the record. During the rest of the period the profits have no doubt fluctuated but they have never gone below Rs. 121 lakhs and have reached the peak of Rs. 213 lakhs in one year. It has been found by the tribunal that the profits for the relevant year are higher than 1955-56 when six months basic wages were awarded as bonus. Prima facie the workmen are, therefore, justified in contending that at least six months bonus should have been paid to them; and that has been the principal argument urged before us both by Mr. Dudhia and by Mr. Gokhale.3. In the case of the Standard Vacuum Refining Company [Civil Appeal No. 416 of 1958 : 1961 - I L.L.J. 227] (reported supra) we have considered this question at some length, and we have pointed out that unless the discretion vesting in the tribunal is shown to have been improperly or unreasonably exercised we would not be justified in interfering with its award. Let us, therefore, set out the reasons given by the tribunal in support of its conclusion. The tribunal has observed that the company has always paid bonus at the same rate in terms of monthly wages to operatives, clerks, supervisory staffs and even some of the officers. Then the tribunal proceeded to examine the economic effects of the awards of bonus on the community; and it has noticed the repercussions of the award of six months wages as bonus to the companys employees on other industries in the region. It is observed that after six months basic wages were awarded to the workmen similar claims began to be made by other employees, and that is a factor which the tribunal thought had to be taken into account. The tribunal then addressed itself to the argument of the company that productivity had decreased, and held that the said contention was not justified. It, however, noticed that the figures of absenteeism in the company were undoubtedly high though it was not inclined to draw any substantial inference from the said fact without a scientific investigation into the circumstances and clauses of absenteeism. It then examined the argument of the workmen that fabulous salaries are paid by the company to its directors and its higher officers. It also noticed the argument of the company that no dividend had been declared for the relevant year. Having thus considered all the relevant factors including the wage-structure prevailing in the company, the tribunal observed :"giving careful consideration to the contention of both side, and having regard to all the facts in the case, I have come to the conclusion that bonus equal to five-twelfths of the basic wages to the workmen would be quite adequate. As observed above, a higher bonus than this is certainly not indicated."4. On the other hand, it held that a lower bonus was clearly ruled out. It is possible that if we were dealing with the question of the quantum of bonus ourselves for the first time, we may have been inclined to uphold the workmens claim for six months basic wages for the relevant year; but, as we have repeatedly pointed out, we would not be justified in interfering with awards of this kind merely because we might have awarded a little more or a little less. Our interference would be justified only if we are satisfied that the award suffers from a serious infirmity, and that the tribunal has failed to consider the necessary relevant facts. We have carefully considered the contentions raised before us by the workmen, but on the whole we are not inclined to interfere with the award made by the tribunal in the present case.5.
### Response:
0
### Explanation:
That being so, it must follow that the plea made by the company in the present appeal cannot befor the reasons given by us in the Civil Appeal No. 416 of 1958 we must hold that the company has failed to establish its plea that it is paying a living wage to itsthe rest of the period the profits have no doubt fluctuated but they have never gone below Rs. 121 lakhs and have reached the peak of Rs. 213 lakhs in one year. It has been found by the tribunal that the profits for the relevant year are higher than 1955-56 when six months basic wages were awarded as bonus. Prima facie the workmen are, therefore, justified in contending that at least six months bonus should have been paid to them; and that has been the principal argument urged before us both by Mr. Dudhia and by Mr.is possible that if we were dealing with the question of the quantum of bonus ourselves for the first time, we may have been inclined to uphold the workmens claim for six months basic wages for the relevant year; but, as we have repeatedly pointed out, we would not be justified in interfering with awards of this kind merely because we might have awarded a little more or a little less. Our interference would be justified only if we are satisfied that the award suffers from a serious infirmity, and that the tribunal has failed to consider the necessary relevant facts. We have carefully considered the contentions raised before us by the workmen, but on the whole we are not inclined to interfere with the award made by the tribunal in the present case.
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Vijay @ Chinee Vs. State of Madhya Pradesh
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that when she was going to get her chappals repaired, she was forcibly taken by the accused to the school and was raped. There was also a contradiction in her statement regarding the dress she was wearing at that time as at one stage, she had stated that she was wearing sari, but at another stage, she stated that she was wearing a frock and vest. Shri Sachthey further submitted that as per the prosecutrix, the appellant had sexual intercourse with her for two hours and one other accused had it for about one hour. Such a course is wholly unnatural and improbable and, therefore, the evidence given by the prosecutrix cannot be held to be reliable. 38. We have considered the contradictions, inconsistencies and discrepancies pointed out by Shri Anip Sachthey, however, they are immaterial for the reason that the Trial Court as well as the High Court have considered these aspects and came to the conclusion that none of those contradictions goes to the root of the case. Admittedly, the prosecutrix was at the place of the incident and the appellant and other accused had intercourse with her. Even if it is presumed that she was major, there is nothing on record to show that she had given her consent. There is nothing on record to show that she had some basic education or had a sense of time and place. Such improvements have to be ignored as they do not go to the root of the case. The Trial Court has recorded the following findings in this regard: "(1) Her father is not alive. All these facts clearly prove that she was uneducated, poor and helpless child labour and, therefore, minor contradictions only given by her are very natural. ...... All depends upon the observance and memory of an individual.(2) The level of understanding of the prosecutrix is very-very low. It appears that in fact she wants to clarify that invariably one may not believe or presume that her consent was there in the gang rape and perhaps therefore she tried to give such a statement........This clearly demonstrates that a testimony and understanding is of a very low level and on the same basis she has been stating about her age also." 39. The High Court has considered the discrepancies in her statement as to whether she was going to get her chappal repaired or was easing herself and came to the conclusion that such contradictions had no material bearing on the prosecutions case as "the fact remains that at that time she was going through that area.". 40. There are concurrent findings of fact by both the courts below. The courts below have applied settled principles of law in the correct perspective which we have explained hereinabove.41. We do not find any force in the submissions made by Shri Anip Sachthey, learned counsel appearing for the appellant, that the instant case was squarely covered by the judgment of this Court in Sunil Vs. State of Haryana (2010) 1 SCC 742 , wherein in a similar case, for non-production of the report of Radiological Test, an adverse inference was drawn against the prosecution and the appellant therein had been acquitted. In the said case, this Court had relied upon the judgment in Sukhwant Singh Vs. State of Punjab (1995) 3 SCC 367 , wherein it has been held as under: ".....failure to produce the expert opinion before the trial Court in such cases affects the creditworthiness of the prosecution case to a great extent." 42. The facts of the case are quite distinguishable. In the said case, the basic issue was merely as to whether the prosecutrix was a minor. The prosecutrix was examined by Dr. Sadhna Verma (PW-1), and found that her Secondary Sex Characters were well developed. She carried out a local examination and in her opinion, the prosecutrix was major. The report reads : "Labia majora was well developed. Pubic hair was present. Carunculae myrtiformes was present. Vagina admitting two fingers. Uterus was normal and retroverted, furnaces free.For her age verification, she was referred to dental surgeon and radiologist opinion." 43. The report of the Medical Officer in the said case was quite contrary. That was a case under Sections 363, 366-A and 376 IPC and in her statement under Section 164 of Code of Criminal Procedure, 1973, the prosecutrix had stated that she was in love with the appellant therein and she had always been a consenting party. This Court itself, after appreciating the statement of Dr. Sadhna Verma (PW1), came to the conclusion that the prosecutrix therein was major. Thus, it is evident that the ratio of the said judgment has no application in the instant case.44. If we examine the whole case in the totality of the circumstances and consider that an illiterate rustic village girl having no sense/estimate/assessment of time and place, found herself apprehended by the appellant and his accomplices and forced to surrender under the threat to life, it is quite possible that she could not even raise hue and cry. She had no option except to surrender. It appears to be a case of non-resistance on the part of the prosecutrix because of fear and the conduct of the prosecutrix cannot be held to be unnatural.45. There is no dispute regarding the place of occurrence and the incident that occurred. The defence could not establish that it was a case of consent. FIR had been lodged most promptly. Appellant and other accused were arrested on the next day. The prosecutrix as well as the appellant and other accused were medically examined on the next day. The appellant or any other accused was not known to the prosecutrix. No reason could be there for which the prosecutrix would have enroped them falsely. Definitely, it could not be a case of consent by the prosecutrix, even if it is assumed that she was major. The discrepancies in the statement of the prosecutrix have to be ignored as explained hereinbefore.
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0[ds]15. Thus, the law that emerges on the issue is to the effect that statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.Thus, it is evident from the above, that the Test Identification is a part of the investigation and is very useful in a case where the accused are not known before hand to the witnesses. It is used only to corroborate the evidence recorded in the court. Therefore, it is not substantive evidence. The actual evidence is what is given by the witnesses in the court.Thus, in view of the above, the law on the point can be summarised to be that the evidence of the witnesses must be read as a whole and the cases are to be considered in totality of the circumstances and while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution case, should not be taken into consideration as they cannot form grounds to reject the evidence as aTrial Court as well as the High Court examined the issue involved herein very minutely. Dr. Rupa Lalwani (PW-3), who had examined the prosecutrix on 7.12.1988, has stated that in the examination she found that there were in all 28 teeth in both the jaws; her breast had developed a little; the armpit hairs were in its initial stage; but there were pubic hair present around her vagina. On the basis of this, she opined that at relevant time, prosecutrix was aged between 12 and 14 years. As the statement of Dr. Rupa Lalwani (PW-3) makes it clear that the prosecutrix Asha @ Gopi had very little developed breast and the growth of her armpit hair was at its initial/first stage, the Court believed that she was below 16 years of age. Undoubtedly, Asha @ Gopi, the prosecutrix had stated in her deposition that she was sent for a Radiological Test to Jabalpur and she could not explain as to why the report of the Radiological Test could not be produced before the Trial Court. In fact, the circumstances under which the report of the Radiological Test could not be produced before the Trial Court, would have been explained only by the Investigating Officer. Unfortunately, there is nothing on record to show that the defence had put any such question to the I.O. during his examination before the Trial Court. In our opinion, the I.O. was the only competent person to throw light on the issue of the non-production of the report of the Radiological Test and in the facts and circumstances of this case, no adverse inference can be drawn against the prosecution in this issue. More so, the prosecution had no control over prosecuting agency. Same remains the position for not holding the Test Identification Parade in this case.Under Section 114-A of the Indian Evidence Act, 1872, which was inserted by way of amendment in the year 1988, there is a clear and specific provision that where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped, and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent.35. Asha @Gopi, the prosecutrix had been consistent throughout in her statement that intercourse was against her wishes and that there was no consent as she had forcibly been caught and threatened and thereafter, she had been subjected to gang rape. In view of the above, we are of the view that the Courts below reached the correct conclusion that the prosecutrix was a minor. Be that as it may, there is nothing on record to establish the consent of the prosecutrix in this case.36. The medical examinations of the appellant and other accused were also conducted soon after their arrest on the next day and it was found that the appellant and others were fit and competent to perform sexual intercourse. There is nothing on record to contradict or disprove the statement of the prosecutrix that the appellant and others took her behind the Railway School and when she cried out, one of the accused showed her a knife and in the meanwhile, accused Vijay, the appellant pressed her mouth and raped her. Thereafter, the other accused persons raped her turn by turn and all of them ran away when the police reached there.We have considered the contradictions, inconsistencies and discrepancies pointed out by Shri Anip Sachthey, however, they are immaterial for the reason that the Trial Court as well as the High Court have considered these aspects and came to the conclusion that none of those contradictions goes to the root of the case. Admittedly, the prosecutrix was at the place of the incident and the appellant and other accused had intercourse with her. Even if it is presumed that she was major, there is nothing on record to show that she had given her consent. There is nothing on record to show that she had some basic education or had a sense of time and place. Such improvements have to be ignored as they do not go to the root of the case.There are concurrent findings of fact by both the courts below. The courts below have applied settled principles of law in the correct perspective which we have explained hereinabove.41. We do not find any force in the submissions made by Shri Anip Sachthey, learned counsel appearing for the appellant, that the instant case was squarely covered by the judgment of this Court in Sunil Vs. State of Haryana (2010) 1 SCC 742 , wherein in a similar case, for non-production of the report of Radiological Test, an adverse inference was drawn against the prosecution and the appellant therein had been acquitted.The facts of the case are quite distinguishable. In the said case, the basic issue was merely as to whether the prosecutrix was a minor. The prosecutrix was examined by Dr. Sadhna Verma (PW-1), and found that her Secondary Sex Characters were well developed. She carried out a local examination and in her opinion, the prosecutrix wasit is evident that the ratio of the said judgment has no application in the instant case.44. If we examine the whole case in the totality of the circumstances and consider that an illiterate rustic village girl having no sense/estimate/assessment of time and place, found herself apprehended by the appellant and his accomplices and forced to surrender under the threat to life, it is quite possible that she could not even raise hue and cry. She had no option except to surrender. It appears to be a case of non-resistance on the part of the prosecutrix because of fear and the conduct of the prosecutrix cannot be held to be unnatural.45. There is no dispute regarding the place of occurrence and the incident that occurred. The defence could not establish that it was a case of consent. FIR had been lodged most promptly. Appellant and other accused were arrested on the next day. The prosecutrix as well as the appellant and other accused were medically examined on the next day. The appellant or any other accused was not known to the prosecutrix. No reason could be there for which the prosecutrix would have enroped them falsely. Definitely, it could not be a case of consent by the prosecutrix, even if it is assumed that she was major. The discrepancies in the statement of the prosecutrix have to be ignored as explained hereinbefore.
| 0 | 6,773 | 1,389 |
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that when she was going to get her chappals repaired, she was forcibly taken by the accused to the school and was raped. There was also a contradiction in her statement regarding the dress she was wearing at that time as at one stage, she had stated that she was wearing sari, but at another stage, she stated that she was wearing a frock and vest. Shri Sachthey further submitted that as per the prosecutrix, the appellant had sexual intercourse with her for two hours and one other accused had it for about one hour. Such a course is wholly unnatural and improbable and, therefore, the evidence given by the prosecutrix cannot be held to be reliable. 38. We have considered the contradictions, inconsistencies and discrepancies pointed out by Shri Anip Sachthey, however, they are immaterial for the reason that the Trial Court as well as the High Court have considered these aspects and came to the conclusion that none of those contradictions goes to the root of the case. Admittedly, the prosecutrix was at the place of the incident and the appellant and other accused had intercourse with her. Even if it is presumed that she was major, there is nothing on record to show that she had given her consent. There is nothing on record to show that she had some basic education or had a sense of time and place. Such improvements have to be ignored as they do not go to the root of the case. The Trial Court has recorded the following findings in this regard: "(1) Her father is not alive. All these facts clearly prove that she was uneducated, poor and helpless child labour and, therefore, minor contradictions only given by her are very natural. ...... All depends upon the observance and memory of an individual.(2) The level of understanding of the prosecutrix is very-very low. It appears that in fact she wants to clarify that invariably one may not believe or presume that her consent was there in the gang rape and perhaps therefore she tried to give such a statement........This clearly demonstrates that a testimony and understanding is of a very low level and on the same basis she has been stating about her age also." 39. The High Court has considered the discrepancies in her statement as to whether she was going to get her chappal repaired or was easing herself and came to the conclusion that such contradictions had no material bearing on the prosecutions case as "the fact remains that at that time she was going through that area.". 40. There are concurrent findings of fact by both the courts below. The courts below have applied settled principles of law in the correct perspective which we have explained hereinabove.41. We do not find any force in the submissions made by Shri Anip Sachthey, learned counsel appearing for the appellant, that the instant case was squarely covered by the judgment of this Court in Sunil Vs. State of Haryana (2010) 1 SCC 742 , wherein in a similar case, for non-production of the report of Radiological Test, an adverse inference was drawn against the prosecution and the appellant therein had been acquitted. In the said case, this Court had relied upon the judgment in Sukhwant Singh Vs. State of Punjab (1995) 3 SCC 367 , wherein it has been held as under: ".....failure to produce the expert opinion before the trial Court in such cases affects the creditworthiness of the prosecution case to a great extent." 42. The facts of the case are quite distinguishable. In the said case, the basic issue was merely as to whether the prosecutrix was a minor. The prosecutrix was examined by Dr. Sadhna Verma (PW-1), and found that her Secondary Sex Characters were well developed. She carried out a local examination and in her opinion, the prosecutrix was major. The report reads : "Labia majora was well developed. Pubic hair was present. Carunculae myrtiformes was present. Vagina admitting two fingers. Uterus was normal and retroverted, furnaces free.For her age verification, she was referred to dental surgeon and radiologist opinion." 43. The report of the Medical Officer in the said case was quite contrary. That was a case under Sections 363, 366-A and 376 IPC and in her statement under Section 164 of Code of Criminal Procedure, 1973, the prosecutrix had stated that she was in love with the appellant therein and she had always been a consenting party. This Court itself, after appreciating the statement of Dr. Sadhna Verma (PW1), came to the conclusion that the prosecutrix therein was major. Thus, it is evident that the ratio of the said judgment has no application in the instant case.44. If we examine the whole case in the totality of the circumstances and consider that an illiterate rustic village girl having no sense/estimate/assessment of time and place, found herself apprehended by the appellant and his accomplices and forced to surrender under the threat to life, it is quite possible that she could not even raise hue and cry. She had no option except to surrender. It appears to be a case of non-resistance on the part of the prosecutrix because of fear and the conduct of the prosecutrix cannot be held to be unnatural.45. There is no dispute regarding the place of occurrence and the incident that occurred. The defence could not establish that it was a case of consent. FIR had been lodged most promptly. Appellant and other accused were arrested on the next day. The prosecutrix as well as the appellant and other accused were medically examined on the next day. The appellant or any other accused was not known to the prosecutrix. No reason could be there for which the prosecutrix would have enroped them falsely. Definitely, it could not be a case of consent by the prosecutrix, even if it is assumed that she was major. The discrepancies in the statement of the prosecutrix have to be ignored as explained hereinbefore.
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### Explanation:
statement of Dr. Rupa Lalwani (PW-3) makes it clear that the prosecutrix Asha @ Gopi had very little developed breast and the growth of her armpit hair was at its initial/first stage, the Court believed that she was below 16 years of age. Undoubtedly, Asha @ Gopi, the prosecutrix had stated in her deposition that she was sent for a Radiological Test to Jabalpur and she could not explain as to why the report of the Radiological Test could not be produced before the Trial Court. In fact, the circumstances under which the report of the Radiological Test could not be produced before the Trial Court, would have been explained only by the Investigating Officer. Unfortunately, there is nothing on record to show that the defence had put any such question to the I.O. during his examination before the Trial Court. In our opinion, the I.O. was the only competent person to throw light on the issue of the non-production of the report of the Radiological Test and in the facts and circumstances of this case, no adverse inference can be drawn against the prosecution in this issue. More so, the prosecution had no control over prosecuting agency. Same remains the position for not holding the Test Identification Parade in this case.Under Section 114-A of the Indian Evidence Act, 1872, which was inserted by way of amendment in the year 1988, there is a clear and specific provision that where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped, and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent.35. Asha @Gopi, the prosecutrix had been consistent throughout in her statement that intercourse was against her wishes and that there was no consent as she had forcibly been caught and threatened and thereafter, she had been subjected to gang rape. In view of the above, we are of the view that the Courts below reached the correct conclusion that the prosecutrix was a minor. Be that as it may, there is nothing on record to establish the consent of the prosecutrix in this case.36. The medical examinations of the appellant and other accused were also conducted soon after their arrest on the next day and it was found that the appellant and others were fit and competent to perform sexual intercourse. There is nothing on record to contradict or disprove the statement of the prosecutrix that the appellant and others took her behind the Railway School and when she cried out, one of the accused showed her a knife and in the meanwhile, accused Vijay, the appellant pressed her mouth and raped her. Thereafter, the other accused persons raped her turn by turn and all of them ran away when the police reached there.We have considered the contradictions, inconsistencies and discrepancies pointed out by Shri Anip Sachthey, however, they are immaterial for the reason that the Trial Court as well as the High Court have considered these aspects and came to the conclusion that none of those contradictions goes to the root of the case. Admittedly, the prosecutrix was at the place of the incident and the appellant and other accused had intercourse with her. Even if it is presumed that she was major, there is nothing on record to show that she had given her consent. There is nothing on record to show that she had some basic education or had a sense of time and place. Such improvements have to be ignored as they do not go to the root of the case.There are concurrent findings of fact by both the courts below. The courts below have applied settled principles of law in the correct perspective which we have explained hereinabove.41. We do not find any force in the submissions made by Shri Anip Sachthey, learned counsel appearing for the appellant, that the instant case was squarely covered by the judgment of this Court in Sunil Vs. State of Haryana (2010) 1 SCC 742 , wherein in a similar case, for non-production of the report of Radiological Test, an adverse inference was drawn against the prosecution and the appellant therein had been acquitted.The facts of the case are quite distinguishable. In the said case, the basic issue was merely as to whether the prosecutrix was a minor. The prosecutrix was examined by Dr. Sadhna Verma (PW-1), and found that her Secondary Sex Characters were well developed. She carried out a local examination and in her opinion, the prosecutrix wasit is evident that the ratio of the said judgment has no application in the instant case.44. If we examine the whole case in the totality of the circumstances and consider that an illiterate rustic village girl having no sense/estimate/assessment of time and place, found herself apprehended by the appellant and his accomplices and forced to surrender under the threat to life, it is quite possible that she could not even raise hue and cry. She had no option except to surrender. It appears to be a case of non-resistance on the part of the prosecutrix because of fear and the conduct of the prosecutrix cannot be held to be unnatural.45. There is no dispute regarding the place of occurrence and the incident that occurred. The defence could not establish that it was a case of consent. FIR had been lodged most promptly. Appellant and other accused were arrested on the next day. The prosecutrix as well as the appellant and other accused were medically examined on the next day. The appellant or any other accused was not known to the prosecutrix. No reason could be there for which the prosecutrix would have enroped them falsely. Definitely, it could not be a case of consent by the prosecutrix, even if it is assumed that she was major. The discrepancies in the statement of the prosecutrix have to be ignored as explained hereinbefore.
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Binod Kumar @ Binod Kumar Bhagat Vs. State of Bihar
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1. Leave granted. 2. The appellant, Binod Kumar @ Binod Kumar Bhagat son of late Krishna Kumar is facing trial for the offences punishable under Sections 272, 273/34 of the Indian Penal Code, 1860 Sections 27(b)(ii), 28, 36AC of Drugs & Cosmetics Act, 1940 and Section 22(C) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act, 1985). He has been in custody since 24.08.2016 in Araria P.S. Case No. 546 of 2016. 3. The prosecution has alleged that on 23.08.2016, a search was conducted at Azad Transport Company Pvt. Ltd., Sadakat Complex, Navratan Chowk, where 4000 bottles of Corex cough syrup containing codeine was recovered and on being asked, the accused appellant, who is running the said transport agency placed a consignment note before the Drug Inspector but instead of the drugs shown in the consignment note, 40 cartons containing 100 bottles each of Corex cough syrup (100 ml) having codeine was recovered and the accused did not show any documents with regard to such recovered cough syrup. The prosecution further states that the drug was recovered from the godown being managed by the appellant. 4. Learned senior counsel appearing for the appellant submits that the drug which was recovered from the godown being managed by the appellant is Corex syrup containing codeine which is being manufactured for the past 25 years. The Government of India issued notification dated 10.03.2016 in exercise of power under Section 26A of the Drugs and Cosmetics Act, 1940 and sought to prohibit the manufacture, distribution and sale of 344 Fixed Dose Combination (FDC) Drugs which included Corex. It is argued that the manufacturer and distributors of prohibited Drugs filed writ petition before the High Court of Delhi and the High Court hold that the notification in question do not abide with the law and were quashed in writ petition (C) No. 2212 of 2016 on 01.12.2016. It is further argued that in view of this development Corex containing codeine is within the permissible limit and is not covered under the NDPS Act, 1985 and the Drugs and Cosmetics Act, 1946.5. It is also argued that the appellant is only an employee (Manager) of Azad Transport Company Pvt. Ltd. The said company is engaged in the business of transportation of goods. The consignee was Alsafa Surgical, Araria. The appellant is assigned with the duty of godown management. 6. We have also heard learned counsel for the respondent State, who has opposed the grant of bail. 7. According to the prosecution the Corex cough syrup has been recovered from the godown and the prosecution alleges that it has been recovered from the appellant. It is evident that the Delhi High Court by order dated 01.12.2016 quashed the notification issued under Section 26A of the Drugs and Cosmetics Act, 1940 which has sought to prohibit the manufacture, distribution and sale of 344 Fixed Dose of Combination. The FIR was registered on 23.8.2016. Be that as it may, the appellant has been in custody from 24.08.2016.8. Having regard to the facts and circumstances of the case, we are of the view that it is just and proper to release the appellant on bail. Therefore, we order the appellant to be released on bail on execution of his personal bond in sum of Rs. 25,000/- with two sureties in the like sum to the satisfaction of the trial judge. We permit the trial judge to impose such conditions as he feels necessary for ensuring the appellants attendance on the dates of posting in the trial court.
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1[ds]It is evident that the Delhi High Court by order dated 01.12.2016 quashed the notification issued under Section 26A of the Drugs and Cosmetics Act, 1940 which has sought to prohibit the manufacture, distribution and sale of 344 Fixed Dose of Combination. The FIR was registered on 23.8.2016. Be that as it may, the appellant has been in custody from 24.08.2016.8. Having regard to the facts and circumstances of the case, we are of the view that it is just and proper to release the appellant on bail. Therefore, we order the appellant to be released on bail on execution of his personal bond in sum of Rs. 25,000/with two sureties in the like sum to the satisfaction of the trial judge. We permit the trial judge to impose such conditions as he feels necessary for ensuring the appellants attendance on the dates of posting in the trial court.
| 1 | 671 | 165 |
### 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:
1. Leave granted. 2. The appellant, Binod Kumar @ Binod Kumar Bhagat son of late Krishna Kumar is facing trial for the offences punishable under Sections 272, 273/34 of the Indian Penal Code, 1860 Sections 27(b)(ii), 28, 36AC of Drugs & Cosmetics Act, 1940 and Section 22(C) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act, 1985). He has been in custody since 24.08.2016 in Araria P.S. Case No. 546 of 2016. 3. The prosecution has alleged that on 23.08.2016, a search was conducted at Azad Transport Company Pvt. Ltd., Sadakat Complex, Navratan Chowk, where 4000 bottles of Corex cough syrup containing codeine was recovered and on being asked, the accused appellant, who is running the said transport agency placed a consignment note before the Drug Inspector but instead of the drugs shown in the consignment note, 40 cartons containing 100 bottles each of Corex cough syrup (100 ml) having codeine was recovered and the accused did not show any documents with regard to such recovered cough syrup. The prosecution further states that the drug was recovered from the godown being managed by the appellant. 4. Learned senior counsel appearing for the appellant submits that the drug which was recovered from the godown being managed by the appellant is Corex syrup containing codeine which is being manufactured for the past 25 years. The Government of India issued notification dated 10.03.2016 in exercise of power under Section 26A of the Drugs and Cosmetics Act, 1940 and sought to prohibit the manufacture, distribution and sale of 344 Fixed Dose Combination (FDC) Drugs which included Corex. It is argued that the manufacturer and distributors of prohibited Drugs filed writ petition before the High Court of Delhi and the High Court hold that the notification in question do not abide with the law and were quashed in writ petition (C) No. 2212 of 2016 on 01.12.2016. It is further argued that in view of this development Corex containing codeine is within the permissible limit and is not covered under the NDPS Act, 1985 and the Drugs and Cosmetics Act, 1946.5. It is also argued that the appellant is only an employee (Manager) of Azad Transport Company Pvt. Ltd. The said company is engaged in the business of transportation of goods. The consignee was Alsafa Surgical, Araria. The appellant is assigned with the duty of godown management. 6. We have also heard learned counsel for the respondent State, who has opposed the grant of bail. 7. According to the prosecution the Corex cough syrup has been recovered from the godown and the prosecution alleges that it has been recovered from the appellant. It is evident that the Delhi High Court by order dated 01.12.2016 quashed the notification issued under Section 26A of the Drugs and Cosmetics Act, 1940 which has sought to prohibit the manufacture, distribution and sale of 344 Fixed Dose of Combination. The FIR was registered on 23.8.2016. Be that as it may, the appellant has been in custody from 24.08.2016.8. Having regard to the facts and circumstances of the case, we are of the view that it is just and proper to release the appellant on bail. Therefore, we order the appellant to be released on bail on execution of his personal bond in sum of Rs. 25,000/- with two sureties in the like sum to the satisfaction of the trial judge. We permit the trial judge to impose such conditions as he feels necessary for ensuring the appellants attendance on the dates of posting in the trial court.
### Response:
1
### Explanation:
It is evident that the Delhi High Court by order dated 01.12.2016 quashed the notification issued under Section 26A of the Drugs and Cosmetics Act, 1940 which has sought to prohibit the manufacture, distribution and sale of 344 Fixed Dose of Combination. The FIR was registered on 23.8.2016. Be that as it may, the appellant has been in custody from 24.08.2016.8. Having regard to the facts and circumstances of the case, we are of the view that it is just and proper to release the appellant on bail. Therefore, we order the appellant to be released on bail on execution of his personal bond in sum of Rs. 25,000/with two sureties in the like sum to the satisfaction of the trial judge. We permit the trial judge to impose such conditions as he feels necessary for ensuring the appellants attendance on the dates of posting in the trial court.
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State of Maharashtra Vs. Maharashtra Land Development Corporation
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water supply in springs, rivers and tanks, maintenance, increase and distribution of the supply of fodder, leaf manure, timber or fuel, maintenance of reservoirs or irrigation works, protection of roads, bridges, railways and other lines of communication and preservation of the public health, etc. Under subsection (3) of section 35 it is provided that no notification under sub clause (1) shall be issued until after a show cause notice to the owner of such forest has been issued and until his objections, if any are heard and considered by Government. Section 38 provides for protection of private forest at the request of the owners and states that upon a request in that behalf being made by the owners the State Government can apply the provisions of the Forest Act to such private forest by means of a notification. If sub-clauses (i) to (iv) of section 2 (f) are read in the light of the aforesaid provisions of sections 34-A, 35 and 38 of the forest Act, 1927, it will appear clear that these sub-clauses bring within the definition of private forest four types of land in respect of which action has been taken by the State Government under sections 34-A, 35 (1), 35 (3) and 38 of the Forest Act. Sub-clause (i) brings within the definition of private forests any land declared before the appointed day to be a forest under section 34-A of the Forest Act and sub-clause (ii) brings any forest in respect of which a notification under section 35 (1) of the Forest Act has been issued immediately before the appointed day within the category of private forest. Both the sections viz. 34-A and 35 of the Forest Act have been repealed with effect from 30th august, 1975 after the coming into force of the Acquisition Act and in view of such repeal no fresh declaration by issuing a notification under section 34-A or fresh issuance of a notification under section 35 (1) is now possible. As regards action taken either under section 34-A or under section under section 35 (1) prior to 30-8-1975 our attention was not drawn to any defective declaration or defective notification issued under either of these provisions. Moreover, it would be reasonable to assume that such prior declaration under section 34-A was in respect of such land as possessed the essential attributes of a forest. Prior action under section 35 (1) must have been merely regulatory or prohibitory of certain acts specified in the section and that too in respect of forest inasmuch as the power to issue such regulations or prohibitions is confined to forests. No grievance can be made with regard to action taken by means of a notification under section 38 of the Forest Act in respect of land mentioned in sub-clause (iv), inasmuch as, such action is taken with a view to formation or conservation of forest over such land at the request of the owners of land. It is thus clear that sub-clauses (i), (ii) and (iv) of section 2 (f) deal with declared, adjudicated or admitted instances of forests. Sub-clause (iii) of section 2 (f) no doubt seeks to cover land in respect of which merely a notice has been issued to the owner of a private forest under section 35 (3) and his objections may have remained unheard till 30-8-1975 as section 35 has stood repealed on the coming into force of the Acquisition Act. Here also, as in the case of owners of land falling under sub-clause (iii) of section 2 (c-i), his objections, if any, including his objection that his land cannot be styled as forest at all can be heard and disposed of under section 6 of the Acquisition Act, and this position was conceded by Counsel appearing for the State of Maharashtra. Sub-clause (v) includes within the definition of private forest the interest of another person who along with Government is jointly interested in a forest, while sub-clause (vi) includes sites of dwelling houses constructed in such forest which are considered to be necessary for the convenient enjoyment or use of forest and lands appurtenant thereto. In our view, the artificiality involved, if any, in the definition of private forest in section 2 (f) is indeed of a very minor nature and does not introduce anything over which the State legislature has no competence. The contention of Mr. Singhvi and Mr. Paranjpe that under the artificial definitions even lands which cannot by any stretch of imagination be regarded as forest in its normal or natural connotation have been brought within that concept as well as their apprehension that lands which may be barren tracts where quarrying operations may be carried on may be included in the artificial definitions under the power of declaration conferred on the State without any hearing are misconceived. In the first place, the artificial parts of the two definitions of forest and private forest do not do anything of the kind as suggested and secondly under section 6 of the Act owners of such land which is sought to be declared as forest would have an opportunity of raising objections to the proposed declarations and of satisfying the Government that their lands are not and cannot be treated or declared as forests. (104) IN our considered opinion, the ratio laid down in Janu Chandra Waghmare has no application to the facts of the case. The said decision, therefore, does not take the case of the first respondent Corporation anywhere. On various grounds discussed by us in earlier part of the judgment, the Maharashtra revenue Tribunal has committed an error of law apparent on the face of the record by holding that the land bearing Survey No. 345-A of village Dahisar was neither forest nor private forest and by taking such view, it exceeded jurisdiction and hence, the said decision deserves to be quashed by this Court by exercising powers under Articles 226 and 227 of the Constitution and accordingly, the said decision is quashed and set aside.
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1[ds](80) IN our considered opinion, the submission on behalf of the petitioners has force that the direction issued by the Honble Apex Court have not been carried out and observed by the Tribunal in their proper spirit. Though the Tribunal was aware of the directions of the Apex Court and it observed that it must bear in mind the evidence which has been pinpointed by the Honble High Court in considering this matter such material has not been considered in its proper perspective. It also clearly appears to us that the approach of the Tribunal is not in consonance with law. The order passed by the Tribunal in earlier matter was set arise by this Court and the writ petition was allowed. The order passed by this Court was again set aside by the Apex Court and the matter was remanded to the Tribunal with a direction to consider the matte afresh. In spite of the clear direction of the Supreme Court to that effect, the Tribunal, in the impugned judgment, observed that inspite of opportunity extended by the Supreme Court the state did not produce any material or additional evidence on record. It was the Corporation which had adduced lot of documentary evidence(83) MR. Sathe, learned Counsel, no doubt, contended that the description in their conveyance was borrowed from the original document in which the property was traditionally described as forestfact and in reality, however, it was not forest land(84) WE are unable to uphold the contention. As already observed earlier, the entire land of Survey No. 345 was forest. It was shown as jungle. In revenue record also, the said fact was reflected and the description found place in the Conveyance Deed of 29/03/1975. It, therefore, cannot be said that the description was traditional as contended by the learned Counsel85) THE Counsel also contended that in the mutation entry, the land in possession ofn was initially shown as forest land but thereafter the said entry was deleted and from1 onwards, the entry quarry and grass was made in 7/12. To us, however, the above circumstances also would not carry the matter further in the light of the decision of the Supreme Court in T. N. Godavarman Thirurmulkpad(86) THE Endeavour of the learned Counsel for the respondent is that the land does not fall within the definition of forest or private forest. It is also not natural forest. It is also not forest in its dictionary meaning nor the land is lying within or linked to forest nor it is a part of National Park nor it is suitable for forest produce and hence cannot be treated as forest(87) IN our view, however, considering the provisions of the relevant statutes and the decisions which we have already referred earlier, and for protecting and safeguarding SGNP Division, orders were passed from time to time prohibiting and preventing quarry operations and commercial activities and in the said perspective, the question has to be decided(88) WE are also of the view that some of the facts and circumstances considered and taken into account by the Tribunal cannot be said to be germane or relevant. For instance, the Tribunal in the impugned order conceded that the land was described as forest (jungle) in all records. It, however, proceeded to state that the contention of Mr. Sathe, learned Counsel for the Corporation that in old days of the past, vast expanses of lands in several parts of Bombay came to be recorded as jungles cannot be ignored. There is nothing on record to substantiate or. Countenance such a conclusion as has been done by the Tribunal. If the case of the respondent herein was that the expression jungle was loosely used or that inspite of the fact that a particular land was not forest or jungle, it was described as such, it was on him to adduce evidence to that effect on the basis of which a finding can be reached by the tribunal. In absence of any material whatsoever, to record that such an expression was loosely used and the land recorded to be jungle cannot be said to be jungle is in our opinion, not legal, valid and in consonance with law89) SIMILAR is the factum regarding withdrawal from acquisition of land bearing Survey No.A in the land acquisition proceedings. Admittedly, the entire Survey No. 345 was forest. Survey No.A i. e. part of Survey No. 345 admeasuring 209 acres and 25 guntkas was withdrawn from acquisition by an order passed by Special Land Acquisition Officer, National Park, Borivli on 15/09/1973. The said action was taken as the land was not found convenient and suitable for the purpose for acquisition. In our view, however, this has nothing. to do with the nature and character of land. A piece of land may not be forest or private forest and yet it may be required under the Land Acquisition Act for a public purpose. On the other hand, a piece of land may be forest or private forest and yet it may not be convenient or suitable for acquisition for a public purpose and hence, may not be acquired. Acquisition of land has something to do with public purpose and acquisition of land under the relevant statute. It has nothing to do with the nature of character of land. Hence, to say that the land was not found to be convenient, appropriate or suitable for acquisition for public purposes and, hence, withdrawal notification was issued does not make forest or private forest land to be(90) LIKEWISE, reliance on two letters/communications dated 12/01/1972 by thel Forest Officer, National Park, Borivli to the conservator of Forest, Thane Circle and a letter dated 26/10/1975 by thel Forest Officer, National Park, Borivli tol Officer, Bombay that the land was not suitable for the purpose of raising trees or forest plantation, etc. and it should be deleted from acquisition has no relevance to the character of the land(103) STRONG reliance placed by Mr. Sathe on the Full Bench decision in Janu chandra Waghmare, in our opinion, will not help the respondent in the case on hand(104) IN our considered opinion, the ratio laid down in Janu Chandra Waghmare has no application to the facts of the case. The said decision, therefore, does not take the case of the first respondent Corporation anywhere. On various grounds discussed by us in earlier part of the judgment, the Maharashtra revenue Tribunal has committed an error of law apparent on the face of the record by holding that the land bearing Survey No.A of village Dahisar was neither forest nor private forest and by taking such view, it exceeded jurisdiction and hence, the said decision deserves to be quashed by this Court by exercising powers under Articles 226 and 227 of the Constitution and accordingly, the said decision is quashed and set aside.
| 1 | 22,334 | 1,275 |
### 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:
water supply in springs, rivers and tanks, maintenance, increase and distribution of the supply of fodder, leaf manure, timber or fuel, maintenance of reservoirs or irrigation works, protection of roads, bridges, railways and other lines of communication and preservation of the public health, etc. Under subsection (3) of section 35 it is provided that no notification under sub clause (1) shall be issued until after a show cause notice to the owner of such forest has been issued and until his objections, if any are heard and considered by Government. Section 38 provides for protection of private forest at the request of the owners and states that upon a request in that behalf being made by the owners the State Government can apply the provisions of the Forest Act to such private forest by means of a notification. If sub-clauses (i) to (iv) of section 2 (f) are read in the light of the aforesaid provisions of sections 34-A, 35 and 38 of the forest Act, 1927, it will appear clear that these sub-clauses bring within the definition of private forest four types of land in respect of which action has been taken by the State Government under sections 34-A, 35 (1), 35 (3) and 38 of the Forest Act. Sub-clause (i) brings within the definition of private forests any land declared before the appointed day to be a forest under section 34-A of the Forest Act and sub-clause (ii) brings any forest in respect of which a notification under section 35 (1) of the Forest Act has been issued immediately before the appointed day within the category of private forest. Both the sections viz. 34-A and 35 of the Forest Act have been repealed with effect from 30th august, 1975 after the coming into force of the Acquisition Act and in view of such repeal no fresh declaration by issuing a notification under section 34-A or fresh issuance of a notification under section 35 (1) is now possible. As regards action taken either under section 34-A or under section under section 35 (1) prior to 30-8-1975 our attention was not drawn to any defective declaration or defective notification issued under either of these provisions. Moreover, it would be reasonable to assume that such prior declaration under section 34-A was in respect of such land as possessed the essential attributes of a forest. Prior action under section 35 (1) must have been merely regulatory or prohibitory of certain acts specified in the section and that too in respect of forest inasmuch as the power to issue such regulations or prohibitions is confined to forests. No grievance can be made with regard to action taken by means of a notification under section 38 of the Forest Act in respect of land mentioned in sub-clause (iv), inasmuch as, such action is taken with a view to formation or conservation of forest over such land at the request of the owners of land. It is thus clear that sub-clauses (i), (ii) and (iv) of section 2 (f) deal with declared, adjudicated or admitted instances of forests. Sub-clause (iii) of section 2 (f) no doubt seeks to cover land in respect of which merely a notice has been issued to the owner of a private forest under section 35 (3) and his objections may have remained unheard till 30-8-1975 as section 35 has stood repealed on the coming into force of the Acquisition Act. Here also, as in the case of owners of land falling under sub-clause (iii) of section 2 (c-i), his objections, if any, including his objection that his land cannot be styled as forest at all can be heard and disposed of under section 6 of the Acquisition Act, and this position was conceded by Counsel appearing for the State of Maharashtra. Sub-clause (v) includes within the definition of private forest the interest of another person who along with Government is jointly interested in a forest, while sub-clause (vi) includes sites of dwelling houses constructed in such forest which are considered to be necessary for the convenient enjoyment or use of forest and lands appurtenant thereto. In our view, the artificiality involved, if any, in the definition of private forest in section 2 (f) is indeed of a very minor nature and does not introduce anything over which the State legislature has no competence. The contention of Mr. Singhvi and Mr. Paranjpe that under the artificial definitions even lands which cannot by any stretch of imagination be regarded as forest in its normal or natural connotation have been brought within that concept as well as their apprehension that lands which may be barren tracts where quarrying operations may be carried on may be included in the artificial definitions under the power of declaration conferred on the State without any hearing are misconceived. In the first place, the artificial parts of the two definitions of forest and private forest do not do anything of the kind as suggested and secondly under section 6 of the Act owners of such land which is sought to be declared as forest would have an opportunity of raising objections to the proposed declarations and of satisfying the Government that their lands are not and cannot be treated or declared as forests. (104) IN our considered opinion, the ratio laid down in Janu Chandra Waghmare has no application to the facts of the case. The said decision, therefore, does not take the case of the first respondent Corporation anywhere. On various grounds discussed by us in earlier part of the judgment, the Maharashtra revenue Tribunal has committed an error of law apparent on the face of the record by holding that the land bearing Survey No. 345-A of village Dahisar was neither forest nor private forest and by taking such view, it exceeded jurisdiction and hence, the said decision deserves to be quashed by this Court by exercising powers under Articles 226 and 227 of the Constitution and accordingly, the said decision is quashed and set aside.
### Response:
1
### Explanation:
remanded to the Tribunal with a direction to consider the matte afresh. In spite of the clear direction of the Supreme Court to that effect, the Tribunal, in the impugned judgment, observed that inspite of opportunity extended by the Supreme Court the state did not produce any material or additional evidence on record. It was the Corporation which had adduced lot of documentary evidence(83) MR. Sathe, learned Counsel, no doubt, contended that the description in their conveyance was borrowed from the original document in which the property was traditionally described as forestfact and in reality, however, it was not forest land(84) WE are unable to uphold the contention. As already observed earlier, the entire land of Survey No. 345 was forest. It was shown as jungle. In revenue record also, the said fact was reflected and the description found place in the Conveyance Deed of 29/03/1975. It, therefore, cannot be said that the description was traditional as contended by the learned Counsel85) THE Counsel also contended that in the mutation entry, the land in possession ofn was initially shown as forest land but thereafter the said entry was deleted and from1 onwards, the entry quarry and grass was made in 7/12. To us, however, the above circumstances also would not carry the matter further in the light of the decision of the Supreme Court in T. N. Godavarman Thirurmulkpad(86) THE Endeavour of the learned Counsel for the respondent is that the land does not fall within the definition of forest or private forest. It is also not natural forest. It is also not forest in its dictionary meaning nor the land is lying within or linked to forest nor it is a part of National Park nor it is suitable for forest produce and hence cannot be treated as forest(87) IN our view, however, considering the provisions of the relevant statutes and the decisions which we have already referred earlier, and for protecting and safeguarding SGNP Division, orders were passed from time to time prohibiting and preventing quarry operations and commercial activities and in the said perspective, the question has to be decided(88) WE are also of the view that some of the facts and circumstances considered and taken into account by the Tribunal cannot be said to be germane or relevant. For instance, the Tribunal in the impugned order conceded that the land was described as forest (jungle) in all records. It, however, proceeded to state that the contention of Mr. Sathe, learned Counsel for the Corporation that in old days of the past, vast expanses of lands in several parts of Bombay came to be recorded as jungles cannot be ignored. There is nothing on record to substantiate or. Countenance such a conclusion as has been done by the Tribunal. If the case of the respondent herein was that the expression jungle was loosely used or that inspite of the fact that a particular land was not forest or jungle, it was described as such, it was on him to adduce evidence to that effect on the basis of which a finding can be reached by the tribunal. In absence of any material whatsoever, to record that such an expression was loosely used and the land recorded to be jungle cannot be said to be jungle is in our opinion, not legal, valid and in consonance with law89) SIMILAR is the factum regarding withdrawal from acquisition of land bearing Survey No.A in the land acquisition proceedings. Admittedly, the entire Survey No. 345 was forest. Survey No.A i. e. part of Survey No. 345 admeasuring 209 acres and 25 guntkas was withdrawn from acquisition by an order passed by Special Land Acquisition Officer, National Park, Borivli on 15/09/1973. The said action was taken as the land was not found convenient and suitable for the purpose for acquisition. In our view, however, this has nothing. to do with the nature and character of land. A piece of land may not be forest or private forest and yet it may be required under the Land Acquisition Act for a public purpose. On the other hand, a piece of land may be forest or private forest and yet it may not be convenient or suitable for acquisition for a public purpose and hence, may not be acquired. Acquisition of land has something to do with public purpose and acquisition of land under the relevant statute. It has nothing to do with the nature of character of land. Hence, to say that the land was not found to be convenient, appropriate or suitable for acquisition for public purposes and, hence, withdrawal notification was issued does not make forest or private forest land to be(90) LIKEWISE, reliance on two letters/communications dated 12/01/1972 by thel Forest Officer, National Park, Borivli to the conservator of Forest, Thane Circle and a letter dated 26/10/1975 by thel Forest Officer, National Park, Borivli tol Officer, Bombay that the land was not suitable for the purpose of raising trees or forest plantation, etc. and it should be deleted from acquisition has no relevance to the character of the land(103) STRONG reliance placed by Mr. Sathe on the Full Bench decision in Janu chandra Waghmare, in our opinion, will not help the respondent in the case on hand(104) IN our considered opinion, the ratio laid down in Janu Chandra Waghmare has no application to the facts of the case. The said decision, therefore, does not take the case of the first respondent Corporation anywhere. On various grounds discussed by us in earlier part of the judgment, the Maharashtra revenue Tribunal has committed an error of law apparent on the face of the record by holding that the land bearing Survey No.A of village Dahisar was neither forest nor private forest and by taking such view, it exceeded jurisdiction and hence, the said decision deserves to be quashed by this Court by exercising powers under Articles 226 and 227 of the Constitution and accordingly, the said decision is quashed and set aside.
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Sakharam Shankar Bansode Vs. State of Maharashtra
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Special leave granted 2. The sole accused in the case is the, appellant. He is convicted under section 302, Indian Penal Code and sentenced to undergo imprisonment for life for the offence of committing the murder of one Nirmala. The occurrence is said to have taken place in a multi-storeyed building near the stair-case where she was working as a maid servant in one of the flats. The deceased was the wife of PW 5 and they were residing in Chembur, Bombay and the accused was residing in the adjacent hut along with his mother and younger brother. PW-5 suspected that the accused had developed illicit intimacy with the deceased and also slapped him and asked him not to visit his house. About a month thereafter, PW-5 went to his native place at Satara, leaving his wife at Bombay. The accused tried to renew the illicit intimacy with wife of PW-5 but she did not respond. Two days prior to the incident, the accused threatened the deceased with dire consequences in case she did not leave her husband and children and join him. The deceased told her sister (PW-9) about the threat given by the accused. On the day of occurrence, 3-5-77, the deceased went to the house of PW-3 and worked there as a maid-servant up to 11.00 a.m. and left the place thereafter and she was found dead with several incised wounds in a pool of blood at the landing place of first floor of the building in the Sindhi Society, Chembur. PW-1, owner of the building informed the police. A case was registered, inquest was held and the dead body was sent for post-mortem. The doctor found several incised wounds which were fatal. The A.P.I Baware, investigated the case and recorded the statements of PWs. 1, 2, 9 and 6. P.W. 12, Head Constable was deputed to trace the accused. But the accused was found absconding. On 8-5-77 it is alleged that the accused visited the house of PW-11, who is supposed to be his friend and was residing there at Pravaranagar - about 350 kms. away from Bombay. PW-11 deposed that the accused came to his house and had meal with him while taking rest, the accused confessed that he committed the murder of the deceased because he was infatuated towards her and since she refused to share his company. Soon after, the accused left the place taking Rs. 2.00 from PW-11. On 8-5-77, the Head Constable (PW-12) contacted PW-11 and coming to know about the extra-judicial confession made by the accused recorded PW-11s statement and went in search of the accused and ultimately arrested him in a different village on 13-5-77 and was produced before the investigating officer. He seized the blood-stained clothes of the accused on 14-5-77, which, according to the prosecution, the accused was still wearing. It is further alleged that at the instance of the accused, the dagger was recovered from a gutter. On completion of the investigation, the charge-sheet was laid 3. The accused totally denied the offence and stated that a false case has been put up against him. He also denied that he made a confession to PW-11 about the alleged crime. The trial Court relied upon the circumstances viz., the motive, recovery of the dagger and also blood-stained cloth and retracted extra judicial confession 4. It is well settled now that a retracted extra-judicial confession, though a piece of evidence on which reliance can be placed, but the same has to be corroborated by independent evidence. That apart, the court must be satisfied that the confession alleged to have been made to PW-11 was true and voluntary one an in judging the same, the conduct of PW-11 and the circumstances which impelled the accused to make a such a statement to PW-11 should be above suspicion. PW-11 deposed that he and the accused studied together some years ago and thereafter they left the school and PW-11 was working as a labourer. PW-11 further admitted that 7 or 8 years back, the accused and the father left the village and two years prior to this occurrence he met him and during the period, the accused did not even visit his house. PW-11 further admitted that he did not inform anybody and he did not even think of informing the police even after coming to know that the accused committed the murder. Though he has stated that he informed his mother but no statement of the mother has been recorded as such. PW-11 further deposed that on 8-5-77 the accused was living in the village on which date he was arrested. But he has not stated so before the police. This conduct of PW-11 throws any amount of suspicion on his veracity. Unless we are satisfied that the extra-judicial confession itself is true, voluntary and reliable we cannot proceed further to examine whether there is any other independent corroborative evidence. There are many suspicious features in the evidence of PW-11. It becomes highly doubtful as to why the accused should cover such a long distance and go all the way to PW-11 to confess his crime and then immediately leave his house. This is a retracted extra-judicial confession which is the sole basis on which both the courts have relied and based the conviction. We are not satisfied with the evidence of PW-11 and his conduct also throws any amount of doubt about the truthfulness and the version given by him. If P.W. 11s evidence becomes unreliable, then there is no other circumstances to connect the accused with the crime.
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1[ds]Though he has stated that he informed his mother but no statement of the mother has been recorded as such.1 further deposed that on7 the accused was living in the village on which date he was arrested. But he has not stated so before the police. This conduct of1 throws any amount of suspicion on his veracity. Unless we are satisfied that thel confession itself is true, voluntary and reliable we cannot proceed further to examine whether there is any other independent corroborative evidence. There are many suspicious features in the evidence of. It becomes highly doubtful as to why the accused should cover such a long distance and go all the way to1 to confess his crime and then immediately leave his house. This is a retractedl confession which is the sole basis on which both the courts have relied and based the conviction. We are not satisfied with the evidence of1 and his conduct also throws any amount of doubt about the truthfulness and the version given by him. If P.W. 11s evidence becomes unreliable, then there is no other circumstances to connect the accused with the crime.
| 1 | 1,016 | 207 |
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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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Special leave granted 2. The sole accused in the case is the, appellant. He is convicted under section 302, Indian Penal Code and sentenced to undergo imprisonment for life for the offence of committing the murder of one Nirmala. The occurrence is said to have taken place in a multi-storeyed building near the stair-case where she was working as a maid servant in one of the flats. The deceased was the wife of PW 5 and they were residing in Chembur, Bombay and the accused was residing in the adjacent hut along with his mother and younger brother. PW-5 suspected that the accused had developed illicit intimacy with the deceased and also slapped him and asked him not to visit his house. About a month thereafter, PW-5 went to his native place at Satara, leaving his wife at Bombay. The accused tried to renew the illicit intimacy with wife of PW-5 but she did not respond. Two days prior to the incident, the accused threatened the deceased with dire consequences in case she did not leave her husband and children and join him. The deceased told her sister (PW-9) about the threat given by the accused. On the day of occurrence, 3-5-77, the deceased went to the house of PW-3 and worked there as a maid-servant up to 11.00 a.m. and left the place thereafter and she was found dead with several incised wounds in a pool of blood at the landing place of first floor of the building in the Sindhi Society, Chembur. PW-1, owner of the building informed the police. A case was registered, inquest was held and the dead body was sent for post-mortem. The doctor found several incised wounds which were fatal. The A.P.I Baware, investigated the case and recorded the statements of PWs. 1, 2, 9 and 6. P.W. 12, Head Constable was deputed to trace the accused. But the accused was found absconding. On 8-5-77 it is alleged that the accused visited the house of PW-11, who is supposed to be his friend and was residing there at Pravaranagar - about 350 kms. away from Bombay. PW-11 deposed that the accused came to his house and had meal with him while taking rest, the accused confessed that he committed the murder of the deceased because he was infatuated towards her and since she refused to share his company. Soon after, the accused left the place taking Rs. 2.00 from PW-11. On 8-5-77, the Head Constable (PW-12) contacted PW-11 and coming to know about the extra-judicial confession made by the accused recorded PW-11s statement and went in search of the accused and ultimately arrested him in a different village on 13-5-77 and was produced before the investigating officer. He seized the blood-stained clothes of the accused on 14-5-77, which, according to the prosecution, the accused was still wearing. It is further alleged that at the instance of the accused, the dagger was recovered from a gutter. On completion of the investigation, the charge-sheet was laid 3. The accused totally denied the offence and stated that a false case has been put up against him. He also denied that he made a confession to PW-11 about the alleged crime. The trial Court relied upon the circumstances viz., the motive, recovery of the dagger and also blood-stained cloth and retracted extra judicial confession 4. It is well settled now that a retracted extra-judicial confession, though a piece of evidence on which reliance can be placed, but the same has to be corroborated by independent evidence. That apart, the court must be satisfied that the confession alleged to have been made to PW-11 was true and voluntary one an in judging the same, the conduct of PW-11 and the circumstances which impelled the accused to make a such a statement to PW-11 should be above suspicion. PW-11 deposed that he and the accused studied together some years ago and thereafter they left the school and PW-11 was working as a labourer. PW-11 further admitted that 7 or 8 years back, the accused and the father left the village and two years prior to this occurrence he met him and during the period, the accused did not even visit his house. PW-11 further admitted that he did not inform anybody and he did not even think of informing the police even after coming to know that the accused committed the murder. Though he has stated that he informed his mother but no statement of the mother has been recorded as such. PW-11 further deposed that on 8-5-77 the accused was living in the village on which date he was arrested. But he has not stated so before the police. This conduct of PW-11 throws any amount of suspicion on his veracity. Unless we are satisfied that the extra-judicial confession itself is true, voluntary and reliable we cannot proceed further to examine whether there is any other independent corroborative evidence. There are many suspicious features in the evidence of PW-11. It becomes highly doubtful as to why the accused should cover such a long distance and go all the way to PW-11 to confess his crime and then immediately leave his house. This is a retracted extra-judicial confession which is the sole basis on which both the courts have relied and based the conviction. We are not satisfied with the evidence of PW-11 and his conduct also throws any amount of doubt about the truthfulness and the version given by him. If P.W. 11s evidence becomes unreliable, then there is no other circumstances to connect the accused with the crime.
### Response:
1
### Explanation:
Though he has stated that he informed his mother but no statement of the mother has been recorded as such.1 further deposed that on7 the accused was living in the village on which date he was arrested. But he has not stated so before the police. This conduct of1 throws any amount of suspicion on his veracity. Unless we are satisfied that thel confession itself is true, voluntary and reliable we cannot proceed further to examine whether there is any other independent corroborative evidence. There are many suspicious features in the evidence of. It becomes highly doubtful as to why the accused should cover such a long distance and go all the way to1 to confess his crime and then immediately leave his house. This is a retractedl confession which is the sole basis on which both the courts have relied and based the conviction. We are not satisfied with the evidence of1 and his conduct also throws any amount of doubt about the truthfulness and the version given by him. If P.W. 11s evidence becomes unreliable, then there is no other circumstances to connect the accused with the crime.
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The Commissioner Of Income-Tax, West Bengal Vs. Royal Calcutta Turf Club
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this case, it cannot be said that the finding of the Tribunal was one of fact.8. The question as to whether the expenses of running the school for jockeys is deductible has to be decided taking into consideration the circumstances of this case. The business of the respondent was to run race meetings on a commercial scale for which it is necessary to have races of as high an order as possible. For the popularity of the races run by the respondent and to make its business profitable it was necessary that there were jockeys of requisite skill and experience in sufficient numbers who would be available to the owners and trainers because without such efficient jockeys the running of race meetings would bot be commercially profitable. It was for this purpose that the respondent started the school for training Indian jockeys. If there were not sufficient number of efficient Indian jockeys to ride horses its interest would have suffered, and it might have had to abandon its business if it did not take steps to make jockeys of the necessary calibre available. Therefore, any expenditure which was incurred for preventing the extinction of the respondents business would, in our opinion, be expenditure wholly and exclusively laid out for the purpose of the business of the assessee and would be an allowable deduction. This finds support from decided cases. In 1960-38 ITR 601 : (AIR 1960 SC 738 ) this Court held that in order to justify a deduction the disbursement must be for reasons of commercial expediency; it may be voluntary but incurred for the assessees business; and if the expense is incurred for the purpose of the business of the assessee it does not matter that the payment also enures to the benefit of a third party. Another test laid down was that if the transaction is properly entered into as a part of the assessees legitimate commercial undertaking in order to facilitate the carrying on of its business it is immaterial that a third party also benefits thereby. In British Insulated and Helsby Cables v. Atherton, 1926 AC 205, Viscount Cave L. C. held that a sum of money expended, not of necessity and with a view to a direct and immediate benefit to the trade, but voluntarily and on the ground of commercial expediency and in order indirectly to facilitate the carrying on of the business may yet be expended wholly and exclusively for the purpose of the trade. In a case more recently decided Morgan v. Tate and Lyle Ltd., 1955 AC 21, the assessee company was engaged in sugar refining business and it incurred expenses in a propaganda campaign to oppose the threatened nationalisation of the industry. It was held by the House of Lords by a majority that the object of the expenditure being to preserve the assets of the company from seizure and so to enable it to carry on its business and earning profits, the expense was an admissible deduction being wholly and exclusively laid out for the purpose of the companys trade. Lord Morton of Henryton said:"Looking simply at the words of the rule I would ask: "If money so spent is not spent for the purpose of the companys trade, for what purpose is it spent?" If the assets are seized, the company can no longer carry on the trade which has been carried on by the use of these assets. Thus the money is spent to preserve the very existence of the companys trade".See also Strong and Co. Ltd. v. Woodifield, 1906 AC 448 the observations of Lord Davey; and Smith v. Incorporated Council of Law Reporting, 1914-3 KB 674.9. Counsel for the appellant relied upon the judgment of the Privy Council in Ward and Co. Ltd. v. Commissioner of Taxes 1923 AC 145, but that decision proceeds on a different statute where the words were of a very restrictive character, the words being:".............Expenditure or loss of any kind not exclusively incurred in the production of the assessable income derived from that source......................".This case was distinguished in 1955 AC 21 on the ground that the language of the New Zealand statute was much narrower than the language of R. 3A in England.10. Reference was also made by the appellant to Boarland v. Kramat Pulai Ltd., 1953-2 All ER 1122. In that case Directors of three Companies engaged in tin mining in Malaya incurred expenditure on printing and circulating to shareholders a pamphlet containing remarks of the Chairman of the Company. The pamphlet was an attack on the policy and acts of the Socialist Government and it was held that the question whether the money was wholly and exclusively laid out or expended for the purpose of trade within the meaning of rules applicable to the question was one of law but on a consideration of the question it was held that the expenditure was not solely incurred with that object. It is not necessary to discuss that case at any length because what was held in that case was that the pamphlet was not wholly and exclusively for the purpose of the companys trade.11. Applying the law, as laid down in those cases, to the present case the conclusion is that the amount in dispute was laid out wholly and exclusively for the purpose of the respondents business because if the supply of jockeys of efficiency and skill failed the business of the respondent would no longer be possible. Thus the money was spent for the preservation of the respondents business.12. As to the third point there is no substance in the submission that the expenditure was in the nature of a capital expense because no asset of enduring nature was being created by this expense.13. In our opinion the High Court has rightly held that the expenditure claimed was one which was wholly and exclusively laid out for the purpose of the respondents business. It was to prevent the threatened extinction of the business of the respondent.
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0[ds]The business of the respondent was to run race meetings on a commercial scale for which it is necessary to have races of as high an order as possible. For the popularity of the races run by the respondent and to make its business profitable it was necessary that there were jockeys of requisite skill and experience in sufficient numbers who would be available to the owners and trainers because without such efficient jockeys the running of race meetings would bot be commercially profitable. It was for this purpose that the respondent started the school for training Indian jockeys. If there were not sufficient number of efficient Indian jockeys to ride horses its interest would have suffered, and it might have had to abandon its business if it did not take steps to make jockeys of the necessary calibre available. Therefore, any expenditure which was incurred for preventing the extinction of the respondents business would, in our opinion, be expenditure wholly and exclusively laid out for the purpose of the business of the assessee and would be an allowable deduction.Applying the law, as laid down in those cases, to the present case the conclusion is that the amount in dispute was laid out wholly and exclusively for the purpose of the respondents business because if the supply of jockeys of efficiency and skill failed the business of the respondent would no longer be possible. Thus the money was spent for the preservation of the respondents business.12. As to the third point there is no substance in the submission that the expenditure was in the nature of a capital expense because no asset of enduring nature was being created by this expense.13. In our opinion the High Court has rightly held that the expenditure claimed was one which was wholly and exclusively laid out for the purpose of the respondents business. It was to prevent the threatened extinction of the business of the respondent.
| 0 | 2,360 | 342 |
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this case, it cannot be said that the finding of the Tribunal was one of fact.8. The question as to whether the expenses of running the school for jockeys is deductible has to be decided taking into consideration the circumstances of this case. The business of the respondent was to run race meetings on a commercial scale for which it is necessary to have races of as high an order as possible. For the popularity of the races run by the respondent and to make its business profitable it was necessary that there were jockeys of requisite skill and experience in sufficient numbers who would be available to the owners and trainers because without such efficient jockeys the running of race meetings would bot be commercially profitable. It was for this purpose that the respondent started the school for training Indian jockeys. If there were not sufficient number of efficient Indian jockeys to ride horses its interest would have suffered, and it might have had to abandon its business if it did not take steps to make jockeys of the necessary calibre available. Therefore, any expenditure which was incurred for preventing the extinction of the respondents business would, in our opinion, be expenditure wholly and exclusively laid out for the purpose of the business of the assessee and would be an allowable deduction. This finds support from decided cases. In 1960-38 ITR 601 : (AIR 1960 SC 738 ) this Court held that in order to justify a deduction the disbursement must be for reasons of commercial expediency; it may be voluntary but incurred for the assessees business; and if the expense is incurred for the purpose of the business of the assessee it does not matter that the payment also enures to the benefit of a third party. Another test laid down was that if the transaction is properly entered into as a part of the assessees legitimate commercial undertaking in order to facilitate the carrying on of its business it is immaterial that a third party also benefits thereby. In British Insulated and Helsby Cables v. Atherton, 1926 AC 205, Viscount Cave L. C. held that a sum of money expended, not of necessity and with a view to a direct and immediate benefit to the trade, but voluntarily and on the ground of commercial expediency and in order indirectly to facilitate the carrying on of the business may yet be expended wholly and exclusively for the purpose of the trade. In a case more recently decided Morgan v. Tate and Lyle Ltd., 1955 AC 21, the assessee company was engaged in sugar refining business and it incurred expenses in a propaganda campaign to oppose the threatened nationalisation of the industry. It was held by the House of Lords by a majority that the object of the expenditure being to preserve the assets of the company from seizure and so to enable it to carry on its business and earning profits, the expense was an admissible deduction being wholly and exclusively laid out for the purpose of the companys trade. Lord Morton of Henryton said:"Looking simply at the words of the rule I would ask: "If money so spent is not spent for the purpose of the companys trade, for what purpose is it spent?" If the assets are seized, the company can no longer carry on the trade which has been carried on by the use of these assets. Thus the money is spent to preserve the very existence of the companys trade".See also Strong and Co. Ltd. v. Woodifield, 1906 AC 448 the observations of Lord Davey; and Smith v. Incorporated Council of Law Reporting, 1914-3 KB 674.9. Counsel for the appellant relied upon the judgment of the Privy Council in Ward and Co. Ltd. v. Commissioner of Taxes 1923 AC 145, but that decision proceeds on a different statute where the words were of a very restrictive character, the words being:".............Expenditure or loss of any kind not exclusively incurred in the production of the assessable income derived from that source......................".This case was distinguished in 1955 AC 21 on the ground that the language of the New Zealand statute was much narrower than the language of R. 3A in England.10. Reference was also made by the appellant to Boarland v. Kramat Pulai Ltd., 1953-2 All ER 1122. In that case Directors of three Companies engaged in tin mining in Malaya incurred expenditure on printing and circulating to shareholders a pamphlet containing remarks of the Chairman of the Company. The pamphlet was an attack on the policy and acts of the Socialist Government and it was held that the question whether the money was wholly and exclusively laid out or expended for the purpose of trade within the meaning of rules applicable to the question was one of law but on a consideration of the question it was held that the expenditure was not solely incurred with that object. It is not necessary to discuss that case at any length because what was held in that case was that the pamphlet was not wholly and exclusively for the purpose of the companys trade.11. Applying the law, as laid down in those cases, to the present case the conclusion is that the amount in dispute was laid out wholly and exclusively for the purpose of the respondents business because if the supply of jockeys of efficiency and skill failed the business of the respondent would no longer be possible. Thus the money was spent for the preservation of the respondents business.12. As to the third point there is no substance in the submission that the expenditure was in the nature of a capital expense because no asset of enduring nature was being created by this expense.13. In our opinion the High Court has rightly held that the expenditure claimed was one which was wholly and exclusively laid out for the purpose of the respondents business. It was to prevent the threatened extinction of the business of the respondent.
### Response:
0
### Explanation:
The business of the respondent was to run race meetings on a commercial scale for which it is necessary to have races of as high an order as possible. For the popularity of the races run by the respondent and to make its business profitable it was necessary that there were jockeys of requisite skill and experience in sufficient numbers who would be available to the owners and trainers because without such efficient jockeys the running of race meetings would bot be commercially profitable. It was for this purpose that the respondent started the school for training Indian jockeys. If there were not sufficient number of efficient Indian jockeys to ride horses its interest would have suffered, and it might have had to abandon its business if it did not take steps to make jockeys of the necessary calibre available. Therefore, any expenditure which was incurred for preventing the extinction of the respondents business would, in our opinion, be expenditure wholly and exclusively laid out for the purpose of the business of the assessee and would be an allowable deduction.Applying the law, as laid down in those cases, to the present case the conclusion is that the amount in dispute was laid out wholly and exclusively for the purpose of the respondents business because if the supply of jockeys of efficiency and skill failed the business of the respondent would no longer be possible. Thus the money was spent for the preservation of the respondents business.12. As to the third point there is no substance in the submission that the expenditure was in the nature of a capital expense because no asset of enduring nature was being created by this expense.13. In our opinion the High Court has rightly held that the expenditure claimed was one which was wholly and exclusively laid out for the purpose of the respondents business. It was to prevent the threatened extinction of the business of the respondent.
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Sunkavilli Suranna And Others Vs. Goli Sathiraju And Others
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inference that fresh pattas and muchilikas were not in recognition of the previous rights. It is pertinent to note that in the records of the zamindar all the muchilikas in respect of the lands bore No. 12, during the life time of Thammiah and after his death they bore No. 23. The circumstance that the same area of land remained in the occupation continuously of the family of Thammiah under Exts. D-1 to D-8 for a period exceeding 25 years also lends support to the plea of the plaintiff. It is true that by his notice Ext. D-7 zamindar called upon Ramanna and Chetamma to vacate the kumatam (which term is translated by the learned counsel for the respondent as home-farm) lands of the extent of 51 acres 72 cents. But by the year 1905 it was well known that legislation of the nature, which was ultimately enacted as the Madras Estates Land Act, l908, was on the legislative anvil and no reliance can be placed upon the statements made in the notice which does not appear to have been followed by proceedings, for enforcement of the claim to possession. It is common ground that on January 16, l906, the zamindar issued in favour of Chetamma and Ramanna a patta in respect of the same lands for an annual rental of Rs. 578-4-0, rent having been enhanced in respect of Sr. Nos. 46 and 358 only.16. The High Court placed strong reliance upon the circumstances that in all the muchilikas and pattas the lands were described as "jeroyati lands" and the tenants were described as "jeroyati ryots". The High Court observed that "jeroyati ryot" was a well-known term indicating prima facie possession of occupancy rights. However, the state of the authorities in the Madras High Court to which our attention has been invited does not justify us in expressing any definite opinion on that plea. In Zamindar of Bodokimidy v. B. Bhimayya, AIR 1927 Mad 76 Curgenven, J. held that the phrase on jirayati tenure is only used where occupancy rights exist. But beyond the bare statement in the judgment that the phrase" on jirayati tenure "being, so far as my experience goes, only used where occupancy rights exist", there is no further elaboration in the judgment. In Lingayya Ayyavaru v. K. Gangiah, AIR 1928 Mad -58 Wallace J., without referring to the earlier judgement of Curgenven J., observed that the term "jeroyatidar" did not imply that the executant was an occupancy ryot. Here also no reasons appear to have been given in support of the view. In D. Tatayya v. K. Venkatasubharaya Sastri, AIR 1928 Mad 786 Devadoss J. in the course of hearing an appeal called for a finding from the trial court as to the meaning of the word "jeroyiti" as used in the Vuyyur Zamindari and as to the meaning of the expression "savaram jeroyiti" used in documents in that estate. The Subordinate Judge recorded evidence on the question referred to him, and observed after referring to Browns Dictionary and Wilsons Glossary, that the word jeroyiti land" may mean cultivable or arable land", but it was only the context that must decide which meaning was to be given to the word. He also observed that the word "jeroyiti especially when prefixed to the word "right or hakku had come to mean "rights of occupancy". This report of the Subordinate Judge, it appears, was accented by the High Court. These are the only decisions of the Madras High Court to which our attention was invited. The task of this Court, in ascertaining the special meaning which an expression used in the revenue administration and by the residents of a certain area has acquired, is indeed difficult. If the expression jeerayot" is a local variation of "Zeerait" used in the revenue administration, especially in Northern India, it may mean "assessed" land. or "agricultural" land. On the materials placed, we are unable to express any definite opinion on this part of the case of the plaintiff.17. To summarise, there is no evidence to show that occupation of the lands by Thammiah commenced under the zamindar and there is no evidence as to the terms on which Thammiah or his predecessors were inducted on the lands: the commencement of the tenancy and the terms thereof are lost in antiquity, but Thammiah and his descendants are proved to have continued in possession of land uninterruptedly till the enactment of the Madras Estates Land Act, 1908. In the light of the presumption that the zamindar is unless the contrary is proved, the owner of the melvaram and the ryot the owner of the kudivaram the inference is irresistible that Thammiah was the holder of the occupancy rights in the lands and that these rights devolved upon his successors and that the occupancy rights in the lands were not acquired by virtue of the provisions of Madras Act VI of 1908.18. Before parting with the case, a minor question relating to mesne profits awarded to the plaintiff and defendants 31 and 32 must be mentioned. By his plaint the plaintiff claimed mesne profits in respect of his share for three years prior to the date of the suit. He valued the claim for mesne profits at Rs. 3,800-past profits on plaintiffs 1/3rd share for two years 1940 and 1941 at Rs. 2,280 and past mesne profits on plaintiffs 1/3rd share for the year 1942 at Rs. 1,520. The trial court dismissed the plaintiffs suit as to his share in property described in Schedule B. The High Court in awarding a third share to the plaintiff and another third share to defendants 31 and 32 collectively also awarded past mesne profits from the 18th of March, 1935, i.e., the date of the death of Bhavamma, along with future mesne profits regarding the shares in the B and C Schedules properties. But the High Court could not award mesne profits prior to August, 1940 which had never been claimed by the plaintiff in the suit.
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0[ds]We lands are within a permanently settled zamindari under Madras Regulation XXV of 1802, and it is common ground that Thammiah was cultivating the entire area of the lands during his life time. There is no evidence indicating that his possession was ever disturbed during his life-time. There is again no evidence about the commencement of the occupation of Thammiah or his predecessors; commencement of their occupation is therefore lost in antiquity. The lands are described in the various documents, to which we will presently refer, as "jeeroyati lands" Thammiah as "jeeroyati ryot", and after his death his daughters-in-law and grandson Ramanna were similarlyevidence does not justify the inference that Thammiah was inducted on the land by Ext. D-1. There is even no evidence that the land was acquired from the zamindar by the members of Thammiahs family, or that the ancestors of Thammiah were not on the land before the zamindari rights accrued to the zamindar. It is also not disputed that lands in zamindaris in the Madras Presidency were held in occupancy right by many ryots even before the Madras Estates Lands Act, 1908 wasright to occupy land under the revenue system prevailing in Madras may arise by reason of the customs in the district in which they are situate. In any event, there is no presumption that the holder of the land under a zamindar is a tenant at will. In each case the rights of the ryot have to be ascertained in the light of the factsdo not think that this is a permissible approach.The presumption which arises in a suit by a zamindar against a ryot for possession of the latters holding, rests not on the narrow ground of burden that whoever alleges title and claims relief an that footing must establish it; the presumption has its roots in the system of land tenure and in the custom of the area in which the lands are situate, and applies in a suit between persons claiming under the ryot, as well as in a suit against the ryot by thesuch a covenant is by itself not sufficient to justify the inference that the ryots tenure was precarious. It appears that since the decision of the Madras High Court in Chockalinga Pillai v. Vythealinga Pundara Sunnady, 6 Mad HCR 164, that neither the Rent Recovery Act, nor the regulations operated to extend a tenancy beyond the period secured by the express or implied terms of the contract creating it, the zamindars were accustomed to take muchilikas or other writings from their ryots admitting, notwithstanding the true nature of their rights, that their tenure was restricted, orwould be unreasonable, therefore, to attach any undue importance to the recitals of the nature contained in Exts. D-1, D-2 andis true that if there were some reliable or substantial evidence to show that the tenancy had commenced after the zamindari rights accrued or that otherwise the tenant"s right was restricted, the value to be attached to the recitals of the nature set out may be greater; but there are no circumstances in this case lending strength to the recitals contained in Exts. D-1, D-2 andwe have no doubt that the Maharaja of Pittapur, the zamindar, never intended in the least to take away the B Schedule lands from Tammayyas heirs and give them to Venkamma and Chittamma who were not heirs and we hold that he renewed the patta in favour of these two widows, as they were considered by him to be representing Tammayyas estate, being his widowed daughters-in-law." In our view, this in the circumstances of the case, is a correctis no evidence on the record that besides the lands mentioned in Schedule B there was any other agricultural land of which Thammiah was possessed and which had devolved upon Rudriah and Ramanna. It is admittedly out of the property of Thammiah which had devolved upon Rudriah and Ramanna that maintenance was agreed to be given, and if Thammiah was not possessed of any property other than the lands in Schedule B, Ext. P-1 must lend strong support to the inference that the lands in Schedule B were regarded at the date of the maintenance deed as belonging to the estate of Thammiah out of which Venkamma was entitled to maintenance. The assumption that the property had devolved upon Rudriah and Ramanna is evidently not true. So long as the daughters or any of them were alive, they were, according to the Hindu law applicable to the Madras Presidency, owners, though for their lifetime only, of the estate left by Thammiah. Ext. P-1 does therefore lend support to the case of the plaintiff that the property was regarded as belonging to the family in which all persons who were living in the house of Thammiah, including the two daughters-in-law had interest. After maintenance was provided to Venkamma by Ext. P-1 her name was omitted from the muchilikas and the pattas subsequently executed. Pattas D-6 and D-8 are, as we have already stated, in favour of Chetamma andHigh Court has held that this enhancement of rent of the two lands Nos 315 and 358 was presumably because the lands were irrigated, and, having regard to the circumstances, we think the inference of the High Court is correct. Enhancement of rent of the lands from time to time does not lend support to the inference that fresh pattas and muchilikas were not in recognition of the previous rights. It is pertinent to note that in the records of the zamindar all the muchilikas in respect of the lands bore No. 12, during the life time of Thammiah and after his death they bore No. 23. The circumstance that the same area of land remained in the occupation continuously of the family of Thammiah under Exts. D-1 to D-8 for a period exceeding 25 years also lends support to the plea of the plaintiff. It is true that by his notice Ext. D-7 zamindar called upon Ramanna and Chetamma to vacate the kumatam (which term is translated by the learned counsel for the respondent as home-farm) lands of the extent of 51 acres 72 cents. But by the year 1905 it was well known that legislation of the nature, which was ultimately enacted as the Madras Estates Land Act, l908, was on the legislative anvil and no reliance can be placed upon the statements made in the notice which does not appear to have been followed by proceedings, for enforcement of the claim to possession. It is common ground that on January 16, l906, the zamindar issued in favour of Chetamma and Ramanna a patta in respect of the same lands for an annual rental of Rs. 578-4-0, rent having been enhanced in respect of Sr. Nos. 46 and 358the materials placed, we are unable to express any definite opinion on this part of the case of the plaintiff.17. To summarise, there is no evidence to show that occupation of the lands by Thammiah commenced under the zamindar and there is no evidence as to the terms on which Thammiah or his predecessors were inducted on the lands: the commencement of the tenancy and the terms thereof are lost in antiquity, but Thammiah and his descendants are proved to have continued in possession of land uninterruptedly till the enactment of the Madras Estates Land Act, 1908. In the light of the presumption that the zamindar is unless the contrary is proved, the owner of the melvaram and the ryot the owner of the kudivaram the inference is irresistible that Thammiah was the holder of the occupancy rights in the lands and that these rights devolved upon his successors and that the occupancy rights in the lands were not acquired by virtue of the provisions of Madras Act VI of 1908.18. Before parting with the case, a minor question relating to mesne profits awarded to the plaintiff and defendants 31 and 32 must be mentioned. By his plaint the plaintiff claimed mesne profits in respect of his share for three years prior to the date of the suit. He valued the claim for mesne profits at Rs. 3,800-past profits on plaintiffs 1/3rd share for two years 1940 and 1941 at Rs. 2,280 and past mesne profits on plaintiffs 1/3rd share for the year 1942 at Rs. 1,520. The trial court dismissed the plaintiffs suit as to his share in property described in Schedule B. The High Court in awarding a third share to the plaintiff and another third share to defendants 31 and 32 collectively also awarded past mesne profits from the 18th of March, 1935, i.e., the date of the death of Bhavamma, along with future mesne profits regarding the shares in the B and C Schedules properties. But the High Court could not award mesne profits prior to August, 1940 which had never been claimed by the plaintiff in the
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inference that fresh pattas and muchilikas were not in recognition of the previous rights. It is pertinent to note that in the records of the zamindar all the muchilikas in respect of the lands bore No. 12, during the life time of Thammiah and after his death they bore No. 23. The circumstance that the same area of land remained in the occupation continuously of the family of Thammiah under Exts. D-1 to D-8 for a period exceeding 25 years also lends support to the plea of the plaintiff. It is true that by his notice Ext. D-7 zamindar called upon Ramanna and Chetamma to vacate the kumatam (which term is translated by the learned counsel for the respondent as home-farm) lands of the extent of 51 acres 72 cents. But by the year 1905 it was well known that legislation of the nature, which was ultimately enacted as the Madras Estates Land Act, l908, was on the legislative anvil and no reliance can be placed upon the statements made in the notice which does not appear to have been followed by proceedings, for enforcement of the claim to possession. It is common ground that on January 16, l906, the zamindar issued in favour of Chetamma and Ramanna a patta in respect of the same lands for an annual rental of Rs. 578-4-0, rent having been enhanced in respect of Sr. Nos. 46 and 358 only.16. The High Court placed strong reliance upon the circumstances that in all the muchilikas and pattas the lands were described as "jeroyati lands" and the tenants were described as "jeroyati ryots". The High Court observed that "jeroyati ryot" was a well-known term indicating prima facie possession of occupancy rights. However, the state of the authorities in the Madras High Court to which our attention has been invited does not justify us in expressing any definite opinion on that plea. In Zamindar of Bodokimidy v. B. Bhimayya, AIR 1927 Mad 76 Curgenven, J. held that the phrase on jirayati tenure is only used where occupancy rights exist. But beyond the bare statement in the judgment that the phrase" on jirayati tenure "being, so far as my experience goes, only used where occupancy rights exist", there is no further elaboration in the judgment. In Lingayya Ayyavaru v. K. Gangiah, AIR 1928 Mad -58 Wallace J., without referring to the earlier judgement of Curgenven J., observed that the term "jeroyatidar" did not imply that the executant was an occupancy ryot. Here also no reasons appear to have been given in support of the view. In D. Tatayya v. K. Venkatasubharaya Sastri, AIR 1928 Mad 786 Devadoss J. in the course of hearing an appeal called for a finding from the trial court as to the meaning of the word "jeroyiti" as used in the Vuyyur Zamindari and as to the meaning of the expression "savaram jeroyiti" used in documents in that estate. The Subordinate Judge recorded evidence on the question referred to him, and observed after referring to Browns Dictionary and Wilsons Glossary, that the word jeroyiti land" may mean cultivable or arable land", but it was only the context that must decide which meaning was to be given to the word. He also observed that the word "jeroyiti especially when prefixed to the word "right or hakku had come to mean "rights of occupancy". This report of the Subordinate Judge, it appears, was accented by the High Court. These are the only decisions of the Madras High Court to which our attention was invited. The task of this Court, in ascertaining the special meaning which an expression used in the revenue administration and by the residents of a certain area has acquired, is indeed difficult. If the expression jeerayot" is a local variation of "Zeerait" used in the revenue administration, especially in Northern India, it may mean "assessed" land. or "agricultural" land. On the materials placed, we are unable to express any definite opinion on this part of the case of the plaintiff.17. To summarise, there is no evidence to show that occupation of the lands by Thammiah commenced under the zamindar and there is no evidence as to the terms on which Thammiah or his predecessors were inducted on the lands: the commencement of the tenancy and the terms thereof are lost in antiquity, but Thammiah and his descendants are proved to have continued in possession of land uninterruptedly till the enactment of the Madras Estates Land Act, 1908. In the light of the presumption that the zamindar is unless the contrary is proved, the owner of the melvaram and the ryot the owner of the kudivaram the inference is irresistible that Thammiah was the holder of the occupancy rights in the lands and that these rights devolved upon his successors and that the occupancy rights in the lands were not acquired by virtue of the provisions of Madras Act VI of 1908.18. Before parting with the case, a minor question relating to mesne profits awarded to the plaintiff and defendants 31 and 32 must be mentioned. By his plaint the plaintiff claimed mesne profits in respect of his share for three years prior to the date of the suit. He valued the claim for mesne profits at Rs. 3,800-past profits on plaintiffs 1/3rd share for two years 1940 and 1941 at Rs. 2,280 and past mesne profits on plaintiffs 1/3rd share for the year 1942 at Rs. 1,520. The trial court dismissed the plaintiffs suit as to his share in property described in Schedule B. The High Court in awarding a third share to the plaintiff and another third share to defendants 31 and 32 collectively also awarded past mesne profits from the 18th of March, 1935, i.e., the date of the death of Bhavamma, along with future mesne profits regarding the shares in the B and C Schedules properties. But the High Court could not award mesne profits prior to August, 1940 which had never been claimed by the plaintiff in the suit.
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rights accrued or that otherwise the tenant"s right was restricted, the value to be attached to the recitals of the nature set out may be greater; but there are no circumstances in this case lending strength to the recitals contained in Exts. D-1, D-2 andwe have no doubt that the Maharaja of Pittapur, the zamindar, never intended in the least to take away the B Schedule lands from Tammayyas heirs and give them to Venkamma and Chittamma who were not heirs and we hold that he renewed the patta in favour of these two widows, as they were considered by him to be representing Tammayyas estate, being his widowed daughters-in-law." In our view, this in the circumstances of the case, is a correctis no evidence on the record that besides the lands mentioned in Schedule B there was any other agricultural land of which Thammiah was possessed and which had devolved upon Rudriah and Ramanna. It is admittedly out of the property of Thammiah which had devolved upon Rudriah and Ramanna that maintenance was agreed to be given, and if Thammiah was not possessed of any property other than the lands in Schedule B, Ext. P-1 must lend strong support to the inference that the lands in Schedule B were regarded at the date of the maintenance deed as belonging to the estate of Thammiah out of which Venkamma was entitled to maintenance. The assumption that the property had devolved upon Rudriah and Ramanna is evidently not true. So long as the daughters or any of them were alive, they were, according to the Hindu law applicable to the Madras Presidency, owners, though for their lifetime only, of the estate left by Thammiah. Ext. P-1 does therefore lend support to the case of the plaintiff that the property was regarded as belonging to the family in which all persons who were living in the house of Thammiah, including the two daughters-in-law had interest. After maintenance was provided to Venkamma by Ext. P-1 her name was omitted from the muchilikas and the pattas subsequently executed. Pattas D-6 and D-8 are, as we have already stated, in favour of Chetamma andHigh Court has held that this enhancement of rent of the two lands Nos 315 and 358 was presumably because the lands were irrigated, and, having regard to the circumstances, we think the inference of the High Court is correct. Enhancement of rent of the lands from time to time does not lend support to the inference that fresh pattas and muchilikas were not in recognition of the previous rights. It is pertinent to note that in the records of the zamindar all the muchilikas in respect of the lands bore No. 12, during the life time of Thammiah and after his death they bore No. 23. The circumstance that the same area of land remained in the occupation continuously of the family of Thammiah under Exts. D-1 to D-8 for a period exceeding 25 years also lends support to the plea of the plaintiff. It is true that by his notice Ext. D-7 zamindar called upon Ramanna and Chetamma to vacate the kumatam (which term is translated by the learned counsel for the respondent as home-farm) lands of the extent of 51 acres 72 cents. But by the year 1905 it was well known that legislation of the nature, which was ultimately enacted as the Madras Estates Land Act, l908, was on the legislative anvil and no reliance can be placed upon the statements made in the notice which does not appear to have been followed by proceedings, for enforcement of the claim to possession. It is common ground that on January 16, l906, the zamindar issued in favour of Chetamma and Ramanna a patta in respect of the same lands for an annual rental of Rs. 578-4-0, rent having been enhanced in respect of Sr. Nos. 46 and 358the materials placed, we are unable to express any definite opinion on this part of the case of the plaintiff.17. To summarise, there is no evidence to show that occupation of the lands by Thammiah commenced under the zamindar and there is no evidence as to the terms on which Thammiah or his predecessors were inducted on the lands: the commencement of the tenancy and the terms thereof are lost in antiquity, but Thammiah and his descendants are proved to have continued in possession of land uninterruptedly till the enactment of the Madras Estates Land Act, 1908. In the light of the presumption that the zamindar is unless the contrary is proved, the owner of the melvaram and the ryot the owner of the kudivaram the inference is irresistible that Thammiah was the holder of the occupancy rights in the lands and that these rights devolved upon his successors and that the occupancy rights in the lands were not acquired by virtue of the provisions of Madras Act VI of 1908.18. Before parting with the case, a minor question relating to mesne profits awarded to the plaintiff and defendants 31 and 32 must be mentioned. By his plaint the plaintiff claimed mesne profits in respect of his share for three years prior to the date of the suit. He valued the claim for mesne profits at Rs. 3,800-past profits on plaintiffs 1/3rd share for two years 1940 and 1941 at Rs. 2,280 and past mesne profits on plaintiffs 1/3rd share for the year 1942 at Rs. 1,520. The trial court dismissed the plaintiffs suit as to his share in property described in Schedule B. The High Court in awarding a third share to the plaintiff and another third share to defendants 31 and 32 collectively also awarded past mesne profits from the 18th of March, 1935, i.e., the date of the death of Bhavamma, along with future mesne profits regarding the shares in the B and C Schedules properties. But the High Court could not award mesne profits prior to August, 1940 which had never been claimed by the plaintiff in the
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State of U.P. and Ors. Vs. Renusagar Power Co. and Ors.
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of the price. That is the only pre-dominant factor, having regard to the technical nature of the order. The impugned order does not suffer from the vice of non-application of mind or non-consideration of the relevant factors and the High Court was in error in interfering with the order of the Government. We are clearly of the opinion that the High Court was in error in interfering with the order in the manner it did. The High Court should not have interfered for interference by the High Court the matter should have been far less cloudy and far more clear. 86. Natural justice in the sense that a party must be heard beforehand need not be directly followed in fixing the price. Reference in this connection may be made to the observations of this Court in Prag Ice and Oil Mills and Anr. etc. v. Union of India 1978CriLJ1281a , where at page 325 of the report, this Court observed that in the ultimate analysis, the mechanics of price fixation has necessarily to be left to the judgment of the executive and unless it is patent that there is hostile discrimination against a class of operators, the processual basis of price fixation has to be accepted in the generality of cases as valid. In this connection reference may also be made to Shree Meenakshi Mills Ltd. v. Union of India [1974]2SCR398 , where this Court dealing with the Cotton Textile (Control) Order, 1948 at page 419 of the report observed that if fair price is to be fixed leaving a reasonable margin of profit, there is never any question of infringement of fundamental right to carry on business by imposing reasonable restrictions. Unreasonableness and natural justice have to be judged in that context. In that view of the matter non-supply of the basis of the report of the BICP does not by itself, in our opinion, in the facts and circumstances of the case make the order of the State Government vulnerable to challenge. 87. In Laxmi Khandsari etc. etc. v. State of U.P. and Ors. [1981]3SCR92 this Court was dealing with the Essential Commodities Act, 1955 and the Sugarcane (Control) Order, 1966 and observed that in determining the reasonableness of restrictions imposed by law in the field of industry, trade or commerce, the mere fact that some of the persons engaged in a particular trade may incur loss due to the imposition of restrictions will not render them unreasonable because it is manifest that trade and industry pass through periods of prosperity and adversity on account of economic, social or political factors. At page 129 of the report rejecting the plea that before fixing a price the rules of natural justice should be adhered to, this Court emphasised, referring to the observations in the case of Saraswati Industrial Syndicate Ltd. v. Union of India [1975]1SCR956 that price fixation is more in the nature of a legislative measure even though it may be based upon objective criteria found in a report or other material. There is scope for trial and error in such sphere. Judged by that standard, the impugned order in this case, in our opinion, is not bad. 88. In support of the proposition that the principles of natural justice had been violated in passing the impugned order, five decisions were referred to, namely, State of Orissa v. Mr. (Miss) Binapani Dei (1967)IILLJ266SC ; A.K. Kraipak v. Union of India, [1970]1SCR457 ; Mohd. Rashid v. State of U.P. (1979)ILLJ146SC ; S.L. Kapoor v. Jagmohan and Ors., [1981]1SCR746 and Maneka Gandhi v. Union of India, [1978]2SCR621 . The principles of these cases will have no application to the facts of this case. There has been no violation of the principles of natural justice to the extent applicable to the order of this nature. 89. Reference was made to the observations in the case of India Sugars and Refineries Ltd. v. Amravathi Service Co-operative Society Ltd. [1976]2SCR740 where at page 746 of the report, this Court observed that the power to grant exemption to factories from payment of additional price is intimately connected with the right of sugarcane growers to claim additional price. In granting of such power, principles of natural justice should be followed. In such a case a duty to act judicially does arise. 90. this Court in Commissioner of Income Tax, Bombay and Ors. v. Mahindra and Mahindra Limited and Ors. [1983]144ITR225(SC) at page 786 of the report, dealt with the parameters of the Courts power of judicial review of administrative or executive action or decision. Indisputably, it is a settled position that if the action or decision is perverse or is such that no reasonable body of persons, properly informed, could come to or has been arrived at by the authority misdirecting itself by adopting a wrong approach or has been influenced by irrelevant or extraneous matters, the Court would be justified in interfering with the same. See also the observations at page 787 of the report. In this case the parameters had been adhered to. All relevant factors had been borne in mind. It is true that each factor had not been independently considered, but these had been borne in mind. In our opinion, the Government did not act in violation either of the principles of natural justice or arbitrarily or in violation of the previous directions of the High Court. 91. In the premises, the High Court was in error in setting aside the order of the State Government in its entirety. The High Court should have allowed the claim of Hindalco for the reduced rate of bill on the basis that Renusagar Power Plant was its own source of generation under Section 3(c) and the bills should have been made by the Board on that basis. But the High Court was in error in upholding the respondents contention that the State Government acted improperly and not in terms of Section 3(4) of the Act and in violation of the principles of natural justice.
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1[ds]17. Own source of generation is an expression connected with the question of lifting or piercing the corporate veil. It is well-settled that in interpreting items in statutes whose primary object is to raise revenue and or which purpose they classify diverse products, articles and substances, resort should be had not to the scientific and technical meaning of the terms or expressions used but to the meaning attached to them by those dealing in them. See the observations of this Court in Chiranjit Lal Anand v. State of Assam and Anr. [1985] Supp 2 SCR 385.38. The first generating unit in Renusagar commenced on 9.9.67 and the second one commenced on 5.10.68. All steps for the expansion of the power in Renusagar so as to match the power requirement of Hindalcos expansion were taken by Hindalco even though Renusagar had been incorporated. Applications for all the necessary sanctions and permissions were made by Hindalco.39. Permissions and sanctions were first intimated to Hindalco even though Renusagar was in existence. See Vol. XVI, pages 129-134149 of the Paper Book. Changes in the sanctions and/or permissions granted were obtained by Hindalco and not by Renusagar. See Vol. XVI, pages 157,180 of the Paper Book.The expansion of the power plant in Renusagar was to exactly match the requirements of Hindalco for the production of aluminium. The expansion of the power plant in Renusagar was part and parcel of the expansion of the aluminium plant of Hindalco. See Vol. XVI, pages 145, 159, 161, 185, 187189 of the Paper Book.40. The third generation unit in Renusagar commenced in November 1981 and the fourth generating unit in April 1983. Hindalco consumes about 255 MW power out of which 250 MW comes from Renusagar and 5 MW by way of main supply and 15 MW by way of emergency supply is made by the Board.41. It was emphasised on behalf of Hindalco that the power plants at Renusagar were set up as part and parcel of the aluminium expansion scheme of Hindalco and the only object and purpose of the power plants in Renusagar was to supply power to suit the needs of Hindalco.42. All steps to set up the power plant in Renusagar and its further expansion were taken by Hindalco. The power plant was set up by Hindalco through the agency of Renusagar (100% subsidiary and wholly owned and controlled by Hindalco) to avoid complications in the event of take over by the State/Board.43. All the borrowings of Renusagar were arranged and guaranteed by Hindalco. Further, there is only one transmission line going out of Renusagar and the same goes to Hindalco. Renusagar can supply power only to Hindalco. Renusagar generates power only to the extent required by Hindalco. Hindalco has complete control over Renusagar including its day-to-day operations. This will be evident from the applications with regard to running of Renusagar Power Plant Station undertaken by Hindalco to the Board. See Vol. XV, pages 104, 118, 124 of the Paper Book.44. The agreement between Renusagar and Hindalco indicates this was not normal sale-purchase agreement between two independent persons at arms length. The price of electricity is determined according to the cash needs of Renusagar. This covenant also shows complete control of Hindalco over Renusagar.Ambit of Section 3(1)(c) is wider than the old section in view of the addition of the words source of generation which must be given their full meaning. We have set-out hereinbefore the provisions of Sections 3(1)(c) and 9 of the Act. Rule 2(g) referred to in the order shows that the expression any person in Section 3(1)(c) would mean a person other than licensee or a Board who consumes energy from his own source of generation. Hindalco fixes in the expression any other person under Section 3(1)(c) and it consumes energy from its own source of generation. Generation being done by Renusagar, it was pointed out that Rule 2(g) of the U.P. Electricity Duty Rules, 1952 supports this plea of the respondents. It should be borne in mind that the expression own source of generation which has not been defined in the Duty Act or 1910 Act, cannot be regarded as a term of art.46. The various documents and letters placed before the Court and referred to hereinbefore indicate that all persons and authorities dealing and conversant with this matter had consistently treated Renusagar as own source of generation of Hindalco. In the power-cuts matter under Section 22B of 1910 Act, 100% cut was imposed on Hindalco on the footing that it has its own source of generation. All the authorities including the State and the Board have all along treated Renusagar as own source of generation of Hindalco. The High Court as well as this Court had proceeded on that basis. In a note with the Advisory Counsel dated 31.5.77 the Secretary, Power Deptt. of the State Govt. treated Renusagar as own source of generation of Hindalco.We may say that Shri Trivedi mainly relied on the proposition that normally the Court has disregarded the separate legal entity of a Company only where the Company was formed or used to facilitate evasion of legal obligations. He referred us to the observations of this Court in Western Coalfields Ltd. v. Special Area Development Authority, Korba and Anr. [1982]2SCR1 . The facts of that case were, however, entirely different and it is useless to refer to them but at page 17 of the report, Chandrachud, C.J. speaking for the Court quoted the observations in Andhra Pradesh State Road Transport Corpn. v. The I.T.O. and Anr. [1994]52ITR524(SC) , where this Court had held that though the Transport Corporation was wholly controlled by the State Government it had a separate entity and its income was not the income of the State Government. While delivering the Judgment in that case Gajendragadkar, C.J., referred to the observations of Lord Denning in Tamlin v. Hannaford [1950] KB 18 where Lord Denning had observed that the Crown and the corporation were different and the servants of the corporation were not civil servants.52. Chandrachud, C.J., relied on the aforesaid observations and referred to penningtons Company Law 4th Edn., pages 50-51, where it was stated that there were only two cases where the Court had disregarded the separate legal entity of a Company and that was done because the company was formed or used to facilitate the evasion of legal obligations.54. Indubitably, in this case there was no question of evasion of taxes but the manner of treatment of the power plant of Renusagar as the power plant of Hindalco and the Government taking full advantage of the same in the case of power cuts and denial of supply of 100% power to Hindalco, in our opinion, underline the facts and, as such, imply acceptance and waiver of the position that Renusagar was a power plant owned by Hindalco.Shri Trivedi naturally relied on several decisions which we shall briefly note in aid of the submission that Renusagars power plant could not be treated as Hindalcos power plant. He referred us to the well-known case of Aron Salomon v. A. Salomon and Co. Ltd. [1897] AC 22 to emphasise the distinction between the shareholders and the company. This point of view was emphasised by this Court also in which Chandrachud, CJ., relied on Western Coalfields Ltd. in Rustom Cavasjee Cooper v. Union of India [1970]3SCR530 at 555, where this Court held that a Company registered under the Companies Act was a legal person, separate and distinct from its individual members. Property of the Company was not the property of the shareholders. These propositions, in our opinion, do not have any application to the facts of the instant case.61. Shri Trivedi drew out attention to the decision in Marshall Richards Machine Co. Ltd. v. Jewitt (H.M. Inspector of Taxes) 36 TC 511, where at page 525 of the report Lord Upjohn, J. observed that where you have a wholly-owned subsidiary, and both the parent company and wholly-owned subsidiary enter into trading relationships, there is, of course, a dual relation, but you cannot for the purposes of tax disregard the fact that there are, in fact, two entities and two trades, that is to say, the trade of each company. It is normally a question of fact whether the disbursement in question is laid out wholly and exclusively and for the purposes of the trade. In aid of this proposition and in furtherance Shri Trivedi drew our attention to the profits of the two companies which were separately computed and also referred to Vol. C, 641 where the profits of Renusagar were separately indicated and Vol. C at page 642 where the profits of Hindalco were separately indicated.62. We are, however, of the opinion that these tests are not conclusive tests by themselves.64. It is high time to reiterate that in the expanding of horizon of modern jurisprudence, lifting of corporate veil is permissible. Its frontiers are unlimited. It must, however, depend primarily on the realities of the situation. The aim of the legislation is to do justice to all the parties. The horizon of the doctrine of lifting of corporate veil is expanding. Here, indubitably, we are of the opinion that it is correct that Renusagar was brought into existence by Hindalco in order to fulfil the condition of industrial licence of Hindalco through production of aluminium. It is also manifest from the facts that the model of the setting up of power station through the agency of Renusagar was adopted by Hindalco to avoid complications in case of take over of the power station by the State or the Electricity Board. As the facts make it abundantly clear that all the steps for establishing and expanding the power station were taken by Hindalco, Renusagar is wholly-owned subsidiary of Hindalco and is completely controlled by Hindalco. Even the day-to-day affairs of Renusagar are controlled by Hindalco. Renusagar has at no point of time indicated any independent volition. Whenever felt necessary, the State or the Board have themselves lifted the corporate veil and have treated Renusagar and Hindalco as one concern and the generation in Renusagar as the own source of generation of Hindalco. In the impugned order of the profits of Renusagar have been treated as the profits of Hindalco.65. In the aforesaid view of the matter we are of the opinion that the corporate veil should be lifted and Hindalco and Renusagar be treated as one concern and Renusagars power plant must be treated as the own source of generation of Hindalco and should be liable to duty on that basis. In the premises the consumption of such energy by Hindalco will fall under Section 3(1)(c) of the Act. The learned Additional Advocate-General for the State relied on several decisions, some of which have been noted.66. The veil on corporate personality even though not lifted sometimes, is becoming more and more transparent in modern company jurisprudence. The ghost of Salomons case still visits frequently the hounds of Company Law but the veil has been pierced in many cases. Some of these have been noted by Justice P.B. Mukharji in the New Jurisprudence. (Tagore Law Lecture 183)67. It appears to us, however, that as mentioned the concept of lifting the corporate veil is a changing concept and is of expanding horizons. We think that the appellant was in error in not treating Renusagars power plant as the power plant of Hindalco and not treating it as the own source of energy. The respondent is liable to duty on the same and on that footing alone; this is evident in view of the principles enunciated and the doctrine now established by way of decision of this Court in Life Insurance Corporation of India, (supra) that in the facts of this case Sections 3(1)(c) and 4(1)(c) of the Act are to be interpreted accordingly. The person generating and consuming energy were the same and the corporate veil should be lifted. In the facts of this case Hindalco and Renusagar were inextricably linked up together. Renusagar had in reality no separate and independent existence apart from and independent of Hindalco.68. In the aforesaid view of the matter we are of the opinion that consumption of energy by Hindalco is clearly consumption by Hindalco from its own source of generation. Therefore, the rates of duty applicable to own source of generation have to be applied to such consumption, that is to say. I paisa per unit for the first two generating sets and nil rate in respect of 3rd and 4th generating sets. It is appropriate to refer that having regard to the conduct of the State the power-cuts matter and also the present proceedings the State should riot be permitted to treat consumption of Renusagars energy by Hindalco as anything other than different from consumption of energy by Hindalco from its own source of generation. We are, therefore, of the opinion that in the facts of this case the corporate veil must be lifted and Hindalco and Renusagar should be treated as one concern and if that is taken the consumption of energy by Hindalco must be regarded as consumption by Hindalco from its own source of generation.69. Inasmuch as the High Court upheld this contention of the respondent we are in respectful agreement of its views and the appeal directed against this finding of the High Court must, therefore, be rejected.72. The provisions of Sub-section (4) of Section 3 have been noticed. As we have read the said provisions, it appears to us that the dominance of public interest is significant and we refer to the various factors, namely, (a) prevailing charges for supply of energy in any area, (b) the generating capacity of any plant, (c) the need to promote industrial production generally or any specified class thereof and other relevant factors and then taking all these factors into consideration, in public interest, to fix different rates of electricity duty in relation to different classes of consumption of energy or allow any exemption from payment thereof. Various grounds have been made out.73. Shri Sen for the respondents is right that in view of the ceilings prescribed the power conferred upon the State under Section 3(1) of the Act by itself is valid and does not amount to excessive delegation. See also in this connection the observations of this Court in Devi Das Gopal Krishnan and Ors. v. State of Punjab and Ors. [1967]3SCR557 and Ram Bachan Lal v. The State of Bihar [1967]3SCR1 .Reliance was placed on the observations of this Court in Vincent Panikurlangara v. Union of India and Ors. : [1987]2SCR468 . There the writ petition involved the claim for withdrawal of 7000 fixed dose combinations and withdrawal of licences of manufacturers engaged in manufacture of about 30 drugs which have been licensed by the Drugs Control Authorities; the issues that fell for consideration are not only relating to technical and specialised matters relating to therapeutic value, justification and harmful side effects of drugs but also involved examination of the correctness of action taken by respondents 1 and 2 therein on the basis of advice; the matter also involved the interest of manufacturers and traders of drugs as also the interest of patients who require drugs for their treatment. this Court reiterated that in view of the magnitude, complexity and technical nature of the enquiry involved in the matter as also the far-reaching implications of the total ban of certain medicines for which the petitioner had prayed, a judicial proceeding of the nature initiated was not an appropriate one for determination of such matters. The technical aspects which arose for consideration in a matter of that type could not be effectively handled by a court. this Court also reiterated that similarly the question of policy which was involved in the matter was also one for the Union Government-keeping the best interest of citizens in view-to decide. No final say in regard to such aspects came under the purview of the court.75. The High Court in the instant case reiterated the necessity of cheap electricity and if cheap electricity was not made available, the cost of indigenous aluminium would go up. It would necessitate import of aluminium causing drain on the foreign exchange of the country. On the other hand, the learned Additional Advocate General for the State of U.P. contended and in our opinion rightly that primary purpose of the Act as stated in the preamble was to raise the revenue for the development projects. Whether in a particular situation, rural electrification and development of agriculture should be given priority or electricity or development of aluminium industry should be given priority or which is in public interest, in our opinion, are value judgments and the legislature is the best judge.The High Court in its impugned judgment referred to the order of the Government. The said order read as follows:The Corporation has also emphasized that the Government of India is spending a huge sum of money in foreign exchange to meet the requirements of aluminium in India, with a view to increasing the aluminium production by Hindalco Electricity should be made available at cheap rate and exemption should be granted to the Corporation from payment of electricity duty. In this connection it may again be pointed out that the imposition of electricity duty will not affect the productivity of aluminium by M/s. Hindalco as electricity duty is negligible as clearly made out in the earlier paragraphs. Accordingly, the electricity duty is not likely to have any adverse effect on foreign exchange of the country.76. Referring to the aforesaid observations of the State Government, the High Court was of the view that the said observations of the State Government clearly showed that the State Government did not address itself to the need of promoting aluminium industry for increasing production of aluminium which would in the long run save foreign exchange. We are unable to agree. What was paramount before introduction of the development programme and how the funds should be allocated and how far the Government considers a negligible increase and rise in the cost of aluminium for the purpose of raising monies for other development activities are matters of policy to be decided by the Government. It is true as the High Court has pointed out that the question regarding public interest and need to promote indigenous industrial production was related with the question of exemption of duty. But what the High Court missed, in our opinion with respect, was that a matter of policy which should be left to the Government. Reading the order of the Government, it appears to us that the Government had adverted itself to all the aspects of Sub-section (4) of Section 3 of the Act. It is true that certain amount of encouragement was given to Hindalco to start the industry in a backward area. After considerable point of time the very low rate of duty was charged. But if we need other sectors of growth and development for example, food, shelter, water, rural electrification, the need for encouragement to aluminium industry had to be subordinated by little high cost because that is a matter on which the Government as representing the will of the people is the deciding factor. Price fixation, in our opinion, which is ultimately the basis of rise in cost because of the rise of the electricity duty is not a matter for investigation of Court.The present case relates to the particular facts and circumstances of an individual, namely, Hindalco. To the extent, its claim for exemption was entitled to the consideration. In our opinion, the facts and circumstances of the case were examined in consonance with the principles of natural justice. All relevant factors were given consideration but subject to public interest. The High Court considered whether electricity duty was included in the prices of aluminium fixed by the Central Government. On this aspect our attention was drawn on behalf of the respondents at pages 372-387 of the judgment in Volume B. It was submitted that the assumption that electricity duty was included in the prices of Hindalco fixed by the Central Government formed a basic and a very important consideration in the making of the impugned order. We are unable to agree. It was also submitted that the said assumption was made by the State Government and Dr. Rajagopalan on the basis of the reports of BICP and the Working Group. The High Court on a perusal of the reports of the BICP and the Working Group came to the conclusion that the said assumption of the State and Dr. Rajagopalan is based on non-existent fact and/or is patently erroneous. Apparently such examination by the High Court was not warranted. It was pointed out that Dr. Rajagopalan had determined the adequacy of the profits of Hindalco by relating the same to the original subscribed capital only and had completely ignored the reserves of Hindalco. The aforesaid basis, it was held by the High Court is contrary to the well accepted principles of return on capital employed/net worth. It is true that Hindalco has made profits much more than it had before the imposition of the duty. The adequacy of the profits or whether it made much more profits is not a consideration which must prevail over public interest and the Government having taken into consideration this factor, in our opinion, did not commit any error and the High Court was in error in setting aside the order of the Government. It is true that the cost of power to similar industry in other State was a relevant factor and the State was under a mandatory duty to consider the same. The State has taken note of all those factors and has observed that M/s. Hindalco is being supplied with electrical energy at a very nominal rate and taking into consideration the prevailing practice of levy of electricity duty in other States as well as the provisions stated in Section 3(4), the Government have come to the conclusion that there is no justification for allowing exemption from electricity duty to M/s. Hindalco. The Government did not commit any error which required interference by the High Court in the manner it did. The assurance of cheap power factor was there. But the assurance of cheap power factor does not foreclose the public interest of raising public revenue.85. In July, 1975 the Central Government fixed uniform prices of aluminium for all the producers of aluminium. The Central Government also fixed uniform sale prices of aluminium applicable to all producers. The Central Government also fixed individual retention prices (based, inter alia, on the cost of production) for each individual producer. All producers of aluminium were to sell aluminium at the uniform sale prices. Any producer whose retention prices were lower than the sale prices had to pay difference into the Aluminium Regulation Account. Any producer whose retention prices were higher than the sale prices was entitled to receive the difference from the Aluminium Regulation Account. Price, therefore, was no question of the respondent being loser or sufferer. It is true that electricity duty was not included and was also considered in the fixation of the price. That is the only pre-dominant factor, having regard to the technical nature of the order. The impugned order does not suffer from the vice of non-application of mind or non-consideration of the relevant factors and the High Court was in error in interfering with the order of the Government. We are clearly of the opinion that the High Court was in error in interfering with the order in the manner it did. The High Court should not have interfered for interference by the High Court the matter should have been far less cloudy and far more clear.86. Natural justice in the sense that a party must be heard beforehand need not be directly followed in fixing the price. Reference in this connection may be made to the observations of this Court in Prag Ice and Oil Mills and Anr. etc. v. Union of India1978CriLJ1281a , where at page 325 of the report, this Court observed that in the ultimate analysis, the mechanics of price fixation has necessarily to be left to the judgment of the executive and unless it is patent that there is hostile discrimination against a class of operators, the processual basis of price fixation has to be accepted in the generality of cases as valid. In this connection reference may also be made to Shree Meenakshi Mills Ltd. v. Union of India [1974]2SCR398 , where this Court dealing with the Cotton Textile (Control) Order, 1948 at page 419 of the report observed that if fair price is to be fixed leaving a reasonable margin of profit, there is never any question of infringement of fundamental right to carry on business by imposing reasonable restrictions. Unreasonableness and natural justice have to be judged in that context. In that view of the matter non-supply of the basis of the report of the BICP does not by itself, in our opinion, in the facts and circumstances of the case make the order of the State Government vulnerable to challenge.87. In Laxmi Khandsari etc. etc. v. State of U.P. and Ors. [1981]3SCR92 this Court was dealing with the Essential Commodities Act, 1955 and the Sugarcane (Control) Order, 1966 and observed that in determining the reasonableness of restrictions imposed by law in the field of industry, trade or commerce, the mere fact that some of the persons engaged in a particular trade may incur loss due to the imposition of restrictions will not render them unreasonable because it is manifest that trade and industry pass through periods of prosperity and adversity on account of economic, social or political factors. At page 129 of the report rejecting the plea that before fixing a price the rules of natural justice should be adhered to, this Court emphasised, referring to the observations in the case of Saraswati Industrial Syndicate Ltd. v. Union of India [1975]1SCR956 that price fixation is more in the nature of a legislative measure even though it may be based upon objective criteria found in a report or other material. There is scope for trial and error in such sphere. Judged by that standard, the impugned order in this case, in our opinion, is not bad.88. In support of the proposition that the principles of natural justice had been violated in passing the impugned order, five decisions were referred to, namely, State of Orissa v. Mr. (Miss) Binapani Dei (1967)IILLJ266SC ; A.K. Kraipak v. Union of India, [1970]1SCR457 ; Mohd. Rashid v. State of U.P. (1979)ILLJ146SC ; S.L. Kapoor v. Jagmohan and Ors., [1981]1SCR746 and Maneka Gandhi v. Union of India, [1978]2SCR621 . The principles of these cases will have no application to the facts of this case. There has been no violation of the principles of natural justice to the extent applicable to the order of this nature.89. Reference was made to the observations in the case of India Sugars and Refineries Ltd. v. Amravathi Service Co-operative Society Ltd. [1976]2SCR740 where at page 746 of the report, this Court observed that the power to grant exemption to factories from payment of additional price is intimately connected with the right of sugarcane growers to claim additional price. In granting of such power, principles of natural justice should be followed. In such a case a duty to act judicially does arise.90. this Court in Commissioner of Income Tax, Bombay and Ors. v. Mahindra and Mahindra Limited and Ors. [1983]144ITR225(SC) at page 786 of the report, dealt with the parameters of the Courts power of judicial review of administrative or executive action or decision. Indisputably, it is a settled position that if the action or decision is perverse or is such that no reasonable body of persons, properly informed, could come to or has been arrived at by the authority misdirecting itself by adopting a wrong approach or has been influenced by irrelevant or extraneous matters, the Court would be justified in interfering with the same. See also the observations at page 787 of the report. In this case the parameters had been adhered to. All relevant factors had been borne in mind. It is true that each factor had not been independently considered, but these had been borne in mind. In our opinion, the Government did not act in violation either of the principles of natural justice or arbitrarily or in violation of the previous directions of the High Court.91. In the premises, the High Court was in error in setting aside the order of the State Government in its entirety. The High Court should have allowed the claim of Hindalco for the reduced rate of bill on the basis that Renusagar Power Plant was its own source of generation under Section 3(c) and the bills should have been made by the Board on that basis. But the High Court was in error in upholding the respondents contention that the State Government acted improperly and not in terms of Section 3(4) of the Act and in violation of the principles of natural justice.
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of the price. That is the only pre-dominant factor, having regard to the technical nature of the order. The impugned order does not suffer from the vice of non-application of mind or non-consideration of the relevant factors and the High Court was in error in interfering with the order of the Government. We are clearly of the opinion that the High Court was in error in interfering with the order in the manner it did. The High Court should not have interfered for interference by the High Court the matter should have been far less cloudy and far more clear. 86. Natural justice in the sense that a party must be heard beforehand need not be directly followed in fixing the price. Reference in this connection may be made to the observations of this Court in Prag Ice and Oil Mills and Anr. etc. v. Union of India 1978CriLJ1281a , where at page 325 of the report, this Court observed that in the ultimate analysis, the mechanics of price fixation has necessarily to be left to the judgment of the executive and unless it is patent that there is hostile discrimination against a class of operators, the processual basis of price fixation has to be accepted in the generality of cases as valid. In this connection reference may also be made to Shree Meenakshi Mills Ltd. v. Union of India [1974]2SCR398 , where this Court dealing with the Cotton Textile (Control) Order, 1948 at page 419 of the report observed that if fair price is to be fixed leaving a reasonable margin of profit, there is never any question of infringement of fundamental right to carry on business by imposing reasonable restrictions. Unreasonableness and natural justice have to be judged in that context. In that view of the matter non-supply of the basis of the report of the BICP does not by itself, in our opinion, in the facts and circumstances of the case make the order of the State Government vulnerable to challenge. 87. In Laxmi Khandsari etc. etc. v. State of U.P. and Ors. [1981]3SCR92 this Court was dealing with the Essential Commodities Act, 1955 and the Sugarcane (Control) Order, 1966 and observed that in determining the reasonableness of restrictions imposed by law in the field of industry, trade or commerce, the mere fact that some of the persons engaged in a particular trade may incur loss due to the imposition of restrictions will not render them unreasonable because it is manifest that trade and industry pass through periods of prosperity and adversity on account of economic, social or political factors. At page 129 of the report rejecting the plea that before fixing a price the rules of natural justice should be adhered to, this Court emphasised, referring to the observations in the case of Saraswati Industrial Syndicate Ltd. v. Union of India [1975]1SCR956 that price fixation is more in the nature of a legislative measure even though it may be based upon objective criteria found in a report or other material. There is scope for trial and error in such sphere. Judged by that standard, the impugned order in this case, in our opinion, is not bad. 88. In support of the proposition that the principles of natural justice had been violated in passing the impugned order, five decisions were referred to, namely, State of Orissa v. Mr. (Miss) Binapani Dei (1967)IILLJ266SC ; A.K. Kraipak v. Union of India, [1970]1SCR457 ; Mohd. Rashid v. State of U.P. (1979)ILLJ146SC ; S.L. Kapoor v. Jagmohan and Ors., [1981]1SCR746 and Maneka Gandhi v. Union of India, [1978]2SCR621 . The principles of these cases will have no application to the facts of this case. There has been no violation of the principles of natural justice to the extent applicable to the order of this nature. 89. Reference was made to the observations in the case of India Sugars and Refineries Ltd. v. Amravathi Service Co-operative Society Ltd. [1976]2SCR740 where at page 746 of the report, this Court observed that the power to grant exemption to factories from payment of additional price is intimately connected with the right of sugarcane growers to claim additional price. In granting of such power, principles of natural justice should be followed. In such a case a duty to act judicially does arise. 90. this Court in Commissioner of Income Tax, Bombay and Ors. v. Mahindra and Mahindra Limited and Ors. [1983]144ITR225(SC) at page 786 of the report, dealt with the parameters of the Courts power of judicial review of administrative or executive action or decision. Indisputably, it is a settled position that if the action or decision is perverse or is such that no reasonable body of persons, properly informed, could come to or has been arrived at by the authority misdirecting itself by adopting a wrong approach or has been influenced by irrelevant or extraneous matters, the Court would be justified in interfering with the same. See also the observations at page 787 of the report. In this case the parameters had been adhered to. All relevant factors had been borne in mind. It is true that each factor had not been independently considered, but these had been borne in mind. In our opinion, the Government did not act in violation either of the principles of natural justice or arbitrarily or in violation of the previous directions of the High Court. 91. In the premises, the High Court was in error in setting aside the order of the State Government in its entirety. The High Court should have allowed the claim of Hindalco for the reduced rate of bill on the basis that Renusagar Power Plant was its own source of generation under Section 3(c) and the bills should have been made by the Board on that basis. But the High Court was in error in upholding the respondents contention that the State Government acted improperly and not in terms of Section 3(4) of the Act and in violation of the principles of natural justice.
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and was also considered in the fixation of the price. That is the only pre-dominant factor, having regard to the technical nature of the order. The impugned order does not suffer from the vice of non-application of mind or non-consideration of the relevant factors and the High Court was in error in interfering with the order of the Government. We are clearly of the opinion that the High Court was in error in interfering with the order in the manner it did. The High Court should not have interfered for interference by the High Court the matter should have been far less cloudy and far more clear.86. Natural justice in the sense that a party must be heard beforehand need not be directly followed in fixing the price. Reference in this connection may be made to the observations of this Court in Prag Ice and Oil Mills and Anr. etc. v. Union of India1978CriLJ1281a , where at page 325 of the report, this Court observed that in the ultimate analysis, the mechanics of price fixation has necessarily to be left to the judgment of the executive and unless it is patent that there is hostile discrimination against a class of operators, the processual basis of price fixation has to be accepted in the generality of cases as valid. In this connection reference may also be made to Shree Meenakshi Mills Ltd. v. Union of India [1974]2SCR398 , where this Court dealing with the Cotton Textile (Control) Order, 1948 at page 419 of the report observed that if fair price is to be fixed leaving a reasonable margin of profit, there is never any question of infringement of fundamental right to carry on business by imposing reasonable restrictions. Unreasonableness and natural justice have to be judged in that context. In that view of the matter non-supply of the basis of the report of the BICP does not by itself, in our opinion, in the facts and circumstances of the case make the order of the State Government vulnerable to challenge.87. In Laxmi Khandsari etc. etc. v. State of U.P. and Ors. [1981]3SCR92 this Court was dealing with the Essential Commodities Act, 1955 and the Sugarcane (Control) Order, 1966 and observed that in determining the reasonableness of restrictions imposed by law in the field of industry, trade or commerce, the mere fact that some of the persons engaged in a particular trade may incur loss due to the imposition of restrictions will not render them unreasonable because it is manifest that trade and industry pass through periods of prosperity and adversity on account of economic, social or political factors. At page 129 of the report rejecting the plea that before fixing a price the rules of natural justice should be adhered to, this Court emphasised, referring to the observations in the case of Saraswati Industrial Syndicate Ltd. v. Union of India [1975]1SCR956 that price fixation is more in the nature of a legislative measure even though it may be based upon objective criteria found in a report or other material. There is scope for trial and error in such sphere. Judged by that standard, the impugned order in this case, in our opinion, is not bad.88. In support of the proposition that the principles of natural justice had been violated in passing the impugned order, five decisions were referred to, namely, State of Orissa v. Mr. (Miss) Binapani Dei (1967)IILLJ266SC ; A.K. Kraipak v. Union of India, [1970]1SCR457 ; Mohd. Rashid v. State of U.P. (1979)ILLJ146SC ; S.L. Kapoor v. Jagmohan and Ors., [1981]1SCR746 and Maneka Gandhi v. Union of India, [1978]2SCR621 . The principles of these cases will have no application to the facts of this case. There has been no violation of the principles of natural justice to the extent applicable to the order of this nature.89. Reference was made to the observations in the case of India Sugars and Refineries Ltd. v. Amravathi Service Co-operative Society Ltd. [1976]2SCR740 where at page 746 of the report, this Court observed that the power to grant exemption to factories from payment of additional price is intimately connected with the right of sugarcane growers to claim additional price. In granting of such power, principles of natural justice should be followed. In such a case a duty to act judicially does arise.90. this Court in Commissioner of Income Tax, Bombay and Ors. v. Mahindra and Mahindra Limited and Ors. [1983]144ITR225(SC) at page 786 of the report, dealt with the parameters of the Courts power of judicial review of administrative or executive action or decision. Indisputably, it is a settled position that if the action or decision is perverse or is such that no reasonable body of persons, properly informed, could come to or has been arrived at by the authority misdirecting itself by adopting a wrong approach or has been influenced by irrelevant or extraneous matters, the Court would be justified in interfering with the same. See also the observations at page 787 of the report. In this case the parameters had been adhered to. All relevant factors had been borne in mind. It is true that each factor had not been independently considered, but these had been borne in mind. In our opinion, the Government did not act in violation either of the principles of natural justice or arbitrarily or in violation of the previous directions of the High Court.91. In the premises, the High Court was in error in setting aside the order of the State Government in its entirety. The High Court should have allowed the claim of Hindalco for the reduced rate of bill on the basis that Renusagar Power Plant was its own source of generation under Section 3(c) and the bills should have been made by the Board on that basis. But the High Court was in error in upholding the respondents contention that the State Government acted improperly and not in terms of Section 3(4) of the Act and in violation of the principles of natural justice.
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Union of India and Another Vs. Avtar Singh and Another
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may be reopened and therefore, by his representation he moved the Central Government to affirm or confirm the decision of the Chief Settlement Commissioner dated August 21, 1961. We remain unimpressed. If every litigant in whose favour a competent authority has made an order can still approach the higher authority for the affirmance of the order without any rhyme of reason, the whole gamut of power of revisional jurisdiction would become a play thing for already successful party who may foreclose the decision and when needed can successfully urge that the power of revision is exhausted. Further, assuming Harnam Singh made the representation apprehending danger to his allotment, the letter of Mr. Dube dated May 31, 1963 does not record any decision of the Central Government. It merely says that it is not necessary to wait any more for response to the queries addressed to authorities in Pakistan and the matter should be finalize d on the basis of finding arrived at in the case. It further proceeds to aver that there is a feeling that there is no reason to differ from those judicial pronouncements at `this stage. Such expression of feeling could hardly tentamount to a decision of the Central Government under Sec. 33. It is not for a moment suggested that the decision of the Central Government has to be recorded in any particular form. In D.N. Roy and S.K. Bannerjee &Ors. v. State of Bihar &Or s. (1) a letter addressed by Under-Secretary to the Government of India to a particular person Stating therein `that with reference to the application of the addressee on the subject noted, he was directed to say that after careful consideration the Central Government by the letter rejects the revision application as being time- barred was treated as a decision of the Central Government. This calls for no comments because the letter is self- explanatory. There is nothing in Shri Dubes letter remotely comparable with the letter in the aforementioned case. On the contrary the Central Government informed the Government of Punjab that the record is returned with the request that the case may be finalised as indicated in the letter. The revisional power is the power of the Central Government and not of the Punjab Government. The decision was left to the Punjab Government. There was nothing pending with the Punjab Government for finalisation. Therefore, the High Court was clearly in error in treating the letter of Shri Dube dated May 31, 1963 as a decision of the Central Government in exercise of the power conferred by Sec. 33. There was no reason for decision nor any occasion for the Central Government to exercise power under Sec. 33 and therefore, it is not possible to agree with the High Court that the letter records the decision of the Central Government under Sec. 33. If the letter of Shri Dube is not a decision of the Central Government under Sec. 33 of the Act, as a necessary corollary, the impugned decision must be treated as one rendered for the first time in exercise of the revisional power under Sec. 33 and therefore, it cannot be said to be one without jurisdiction. In this view of the matter, the appeal will have to be allowed.Mr. Bindra, learned counsel who appeared for some of the respondents made a strenuous effort to persuade us to look into the equities of the case. In fact, we are wholly disinclined to undertake this exercise of evaluating facts or evidence in a petition for a writ of certiorari. Further in the impugned decision the facts as appearing from the record and submissions made by the learned counsel for claimants are exhaustively dealt with and no case for interference is made out. Only two aspects however may be referred to. 16. Harnam Singh claimed to be the owner of 225 acres of land situated in erstwhile Sind Province. In the first claim lodged by him, he clearly stated that he was the owner of 300 acres. He then modified it to 225 acres. In neither of the two claims, he ever suggested that there was a partition between him and his sons also giving a share to his wife. The story of partition clearly appears to b e an after thought because it is helpful in obtaining higher allotment. No documentary evidence has been placed on record to support the case of partition which clearly appears to have been an after thought. Earlier Jamabandi entries from Pakistan permitted a negative inference that there was no partition. The Central Governments while setting aside the order of the Chief Settlement Commissioner dated August 21, 1961 recorded the finding that: (i) there is no writing or deed of partition: (ii) Revenue records show the name of Shri Harnam Singh alone on the basis of the sale deed in his exclusive name: (iii) there are no receipts indicating separate payment of land revenue by any one of the respondents after alleged partition; (iv) no objection was taken by the sons at the time of the filing of the claim by the father; (v) there is no mention of individuals share in the claim filed by the father; These are relevant considerations which would certainly throw doubt on the claim of oral partition alleged to have been effected by Harnam Singh. Once the allegation of oral partition is rejected, the respondents are not entitled to any consideration even on equitable grounds.In the concluding stages of the arguments the respondents contended that Harnam Singh has died and his heirs having not been substituted, the appeal has abated. There is no merit in this contention. Harnam singh was not the petitioner before the high Court. He was respondent No. 2. No relief was claimed against him. Further Harnam Singh was not asked to surrender the land. Petitioners before the High Court were adversely affected by the impugned decision. Death of Harnam Singh would therefore, have no impact on this appeal. Therefore, the contention is rejected.
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1[ds]Harnam Singh claimed to be the owner of 225 acres of land situated in erstwhile Sind Province. In the first claim lodged by him, he clearly stated that he was the owner of 300 acres. He then modified it to 225 acres. In neither of the two claims, he ever suggested that there was a partition between him and his sons also giving a share to his wife. The story of partition clearly appears to b e an after thought because it is helpful in obtaining higher allotment. No documentary evidence has been placed on record to support the case of partition which clearly appears to have been an after thought. Earlier Jamabandi entries from Pakistan permitted a negative inference that there was no partition. The Central Governments while setting aside the order of the Chief Settlement Commissioner dated August 21, 1961 recorded the finding that: (i) there is no writing or deed of partition: (ii) Revenue records show the name of Shri Harnam Singh alone on the basis of the sale deed in his exclusive name: (iii) there are no receipts indicating separate payment of land revenue by any one of the respondents after alleged partition; (iv) no objection was taken by the sons at the time of the filing of the claim by the father; (v) there is no mention of individuals share in the claim filed by the father; These are relevant considerations which would certainly throw doubt on the claim of oral partition alleged to have been effected by Harnam Singh. Once the allegation of oral partition is rejected, the respondents are not entitled to any consideration even on equitable grounds.In the concluding stages of the arguments the respondents contended that Harnam Singh has died and his heirs having not been substituted, the appeal has abated. There is no merit in this contention. Harnam singh was not the petitioner before the high Court. He was respondent No. 2. No relief was claimed against him. Further Harnam Singh was not asked to surrender the land. Petitioners before the High Court were adversely affected by the impugned decision. Death of Harnam Singh would therefore, have no impact on this appeal. Therefore, the contention is rejected15. It needs to be recalled that the decision of the Chief Settlement Commissioner dated August 21, 1961 was wholly in favour of Harnam Singh and his sons. Atleast Harnam Singh and his sons could not be said to be persons aggrieved by the order so as to move the Central Government invoking its revisional power under Sec. 33. Mr. Rao however, contended that the representation Annexure `D dated March 13 of Harnam Singh reveals that he apprehended that the case may be reopened and therefore, by his representation he moved the Central Government to affirm or confirm the decision of the Chief Settlement Commissioner dated August 21, 1961. We remain unimpressed. If every litigant in whose favour a competent authority has made an order can still approach the higher authority for the affirmance of the order without any rhyme of reason, the whole gamut of power of revisional jurisdiction would become a play thing for already successful party who may foreclose the decision and when needed can successfully urge that the power of revision is exhausted. Further, assuming Harnam Singh made the representation apprehending danger to his allotment, the letter of Mr. Dube dated May 31, 1963 does not record any decision of the Central Government. It merely says that it is not necessary to wait any more for response to the queries addressed to authorities in Pakistan and the matter should be finalize d on the basis of finding arrived at in the case. It further proceeds to aver that there is a feeling that there is no reason to differ from those judicial pronouncements at `this stage. Such expression of feeling could hardly tentamount to a decision of the Central Government under Sec. 33. It is not for a moment suggested that the decision of the Central Government has to be recorded in any particular form. In D.N. Roy and S.K. Bannerjee &Ors. v. State of Bihar &Or s. (1) a letter addressed byy to the Government of India to a particular person Stating therein `that with reference to the application of the addressee on the subject noted, he was directed to say that after careful consideration the Central Government by the letter rejects the revision application as being timebarred was treated as a decision of the Central Government. This calls for no comments because the letter is selfexplanatory. There is nothing in Shri Dubes letter remotely comparable with the letter in the aforementioned case. On the contrary the Central Government informed the Government of Punjab that the record is returned with the request that the case may be finalised as indicated in the letter. The revisional power is the power of the Central Government and not of the Punjab Government. The decision was left to the Punjab Government. There was nothing pending with the Punjab Government for finalisation. Therefore, the High Court was clearly in error in treating the letter of Shri Dube dated May 31, 1963 as a decision of the Central Government in exercise of the power conferred by Sec. 33. There was no reason for decision nor any occasion for the Central Government to exercise power under Sec. 33 and therefore, it is not possible to agree with the High Court that the letter records the decision of the Central Government under Sec. 33. If the letter of Shri Dube is not a decision of the Central Government under Sec. 33 of the Act, as a necessary corollary, the impugned decision must be treated as one rendered for the first time in exercise of the revisional power under Sec. 33 and therefore, it cannot be said to be one without jurisdiction. In this view of the matter, the appeal will have to be allowedIn fact, we are wholly disinclined to undertake this exercise of evaluating facts or evidence in a petition for a writ of certiorari. Further in the impugned decision the facts as appearing from the record and submissions made by the learned counsel for claimants are exhaustively dealt with and no case for interference is made out. Only two aspects however may be referred to.
| 1 | 5,914 | 1,153 |
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may be reopened and therefore, by his representation he moved the Central Government to affirm or confirm the decision of the Chief Settlement Commissioner dated August 21, 1961. We remain unimpressed. If every litigant in whose favour a competent authority has made an order can still approach the higher authority for the affirmance of the order without any rhyme of reason, the whole gamut of power of revisional jurisdiction would become a play thing for already successful party who may foreclose the decision and when needed can successfully urge that the power of revision is exhausted. Further, assuming Harnam Singh made the representation apprehending danger to his allotment, the letter of Mr. Dube dated May 31, 1963 does not record any decision of the Central Government. It merely says that it is not necessary to wait any more for response to the queries addressed to authorities in Pakistan and the matter should be finalize d on the basis of finding arrived at in the case. It further proceeds to aver that there is a feeling that there is no reason to differ from those judicial pronouncements at `this stage. Such expression of feeling could hardly tentamount to a decision of the Central Government under Sec. 33. It is not for a moment suggested that the decision of the Central Government has to be recorded in any particular form. In D.N. Roy and S.K. Bannerjee &Ors. v. State of Bihar &Or s. (1) a letter addressed by Under-Secretary to the Government of India to a particular person Stating therein `that with reference to the application of the addressee on the subject noted, he was directed to say that after careful consideration the Central Government by the letter rejects the revision application as being time- barred was treated as a decision of the Central Government. This calls for no comments because the letter is self- explanatory. There is nothing in Shri Dubes letter remotely comparable with the letter in the aforementioned case. On the contrary the Central Government informed the Government of Punjab that the record is returned with the request that the case may be finalised as indicated in the letter. The revisional power is the power of the Central Government and not of the Punjab Government. The decision was left to the Punjab Government. There was nothing pending with the Punjab Government for finalisation. Therefore, the High Court was clearly in error in treating the letter of Shri Dube dated May 31, 1963 as a decision of the Central Government in exercise of the power conferred by Sec. 33. There was no reason for decision nor any occasion for the Central Government to exercise power under Sec. 33 and therefore, it is not possible to agree with the High Court that the letter records the decision of the Central Government under Sec. 33. If the letter of Shri Dube is not a decision of the Central Government under Sec. 33 of the Act, as a necessary corollary, the impugned decision must be treated as one rendered for the first time in exercise of the revisional power under Sec. 33 and therefore, it cannot be said to be one without jurisdiction. In this view of the matter, the appeal will have to be allowed.Mr. Bindra, learned counsel who appeared for some of the respondents made a strenuous effort to persuade us to look into the equities of the case. In fact, we are wholly disinclined to undertake this exercise of evaluating facts or evidence in a petition for a writ of certiorari. Further in the impugned decision the facts as appearing from the record and submissions made by the learned counsel for claimants are exhaustively dealt with and no case for interference is made out. Only two aspects however may be referred to. 16. Harnam Singh claimed to be the owner of 225 acres of land situated in erstwhile Sind Province. In the first claim lodged by him, he clearly stated that he was the owner of 300 acres. He then modified it to 225 acres. In neither of the two claims, he ever suggested that there was a partition between him and his sons also giving a share to his wife. The story of partition clearly appears to b e an after thought because it is helpful in obtaining higher allotment. No documentary evidence has been placed on record to support the case of partition which clearly appears to have been an after thought. Earlier Jamabandi entries from Pakistan permitted a negative inference that there was no partition. The Central Governments while setting aside the order of the Chief Settlement Commissioner dated August 21, 1961 recorded the finding that: (i) there is no writing or deed of partition: (ii) Revenue records show the name of Shri Harnam Singh alone on the basis of the sale deed in his exclusive name: (iii) there are no receipts indicating separate payment of land revenue by any one of the respondents after alleged partition; (iv) no objection was taken by the sons at the time of the filing of the claim by the father; (v) there is no mention of individuals share in the claim filed by the father; These are relevant considerations which would certainly throw doubt on the claim of oral partition alleged to have been effected by Harnam Singh. Once the allegation of oral partition is rejected, the respondents are not entitled to any consideration even on equitable grounds.In the concluding stages of the arguments the respondents contended that Harnam Singh has died and his heirs having not been substituted, the appeal has abated. There is no merit in this contention. Harnam singh was not the petitioner before the high Court. He was respondent No. 2. No relief was claimed against him. Further Harnam Singh was not asked to surrender the land. Petitioners before the High Court were adversely affected by the impugned decision. Death of Harnam Singh would therefore, have no impact on this appeal. Therefore, the contention is rejected.
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suggested that there was a partition between him and his sons also giving a share to his wife. The story of partition clearly appears to b e an after thought because it is helpful in obtaining higher allotment. No documentary evidence has been placed on record to support the case of partition which clearly appears to have been an after thought. Earlier Jamabandi entries from Pakistan permitted a negative inference that there was no partition. The Central Governments while setting aside the order of the Chief Settlement Commissioner dated August 21, 1961 recorded the finding that: (i) there is no writing or deed of partition: (ii) Revenue records show the name of Shri Harnam Singh alone on the basis of the sale deed in his exclusive name: (iii) there are no receipts indicating separate payment of land revenue by any one of the respondents after alleged partition; (iv) no objection was taken by the sons at the time of the filing of the claim by the father; (v) there is no mention of individuals share in the claim filed by the father; These are relevant considerations which would certainly throw doubt on the claim of oral partition alleged to have been effected by Harnam Singh. Once the allegation of oral partition is rejected, the respondents are not entitled to any consideration even on equitable grounds.In the concluding stages of the arguments the respondents contended that Harnam Singh has died and his heirs having not been substituted, the appeal has abated. There is no merit in this contention. Harnam singh was not the petitioner before the high Court. He was respondent No. 2. No relief was claimed against him. Further Harnam Singh was not asked to surrender the land. Petitioners before the High Court were adversely affected by the impugned decision. Death of Harnam Singh would therefore, have no impact on this appeal. Therefore, the contention is rejected15. It needs to be recalled that the decision of the Chief Settlement Commissioner dated August 21, 1961 was wholly in favour of Harnam Singh and his sons. Atleast Harnam Singh and his sons could not be said to be persons aggrieved by the order so as to move the Central Government invoking its revisional power under Sec. 33. Mr. Rao however, contended that the representation Annexure `D dated March 13 of Harnam Singh reveals that he apprehended that the case may be reopened and therefore, by his representation he moved the Central Government to affirm or confirm the decision of the Chief Settlement Commissioner dated August 21, 1961. We remain unimpressed. If every litigant in whose favour a competent authority has made an order can still approach the higher authority for the affirmance of the order without any rhyme of reason, the whole gamut of power of revisional jurisdiction would become a play thing for already successful party who may foreclose the decision and when needed can successfully urge that the power of revision is exhausted. Further, assuming Harnam Singh made the representation apprehending danger to his allotment, the letter of Mr. Dube dated May 31, 1963 does not record any decision of the Central Government. It merely says that it is not necessary to wait any more for response to the queries addressed to authorities in Pakistan and the matter should be finalize d on the basis of finding arrived at in the case. It further proceeds to aver that there is a feeling that there is no reason to differ from those judicial pronouncements at `this stage. Such expression of feeling could hardly tentamount to a decision of the Central Government under Sec. 33. It is not for a moment suggested that the decision of the Central Government has to be recorded in any particular form. In D.N. Roy and S.K. Bannerjee &Ors. v. State of Bihar &Or s. (1) a letter addressed byy to the Government of India to a particular person Stating therein `that with reference to the application of the addressee on the subject noted, he was directed to say that after careful consideration the Central Government by the letter rejects the revision application as being timebarred was treated as a decision of the Central Government. This calls for no comments because the letter is selfexplanatory. There is nothing in Shri Dubes letter remotely comparable with the letter in the aforementioned case. On the contrary the Central Government informed the Government of Punjab that the record is returned with the request that the case may be finalised as indicated in the letter. The revisional power is the power of the Central Government and not of the Punjab Government. The decision was left to the Punjab Government. There was nothing pending with the Punjab Government for finalisation. Therefore, the High Court was clearly in error in treating the letter of Shri Dube dated May 31, 1963 as a decision of the Central Government in exercise of the power conferred by Sec. 33. There was no reason for decision nor any occasion for the Central Government to exercise power under Sec. 33 and therefore, it is not possible to agree with the High Court that the letter records the decision of the Central Government under Sec. 33. If the letter of Shri Dube is not a decision of the Central Government under Sec. 33 of the Act, as a necessary corollary, the impugned decision must be treated as one rendered for the first time in exercise of the revisional power under Sec. 33 and therefore, it cannot be said to be one without jurisdiction. In this view of the matter, the appeal will have to be allowedIn fact, we are wholly disinclined to undertake this exercise of evaluating facts or evidence in a petition for a writ of certiorari. Further in the impugned decision the facts as appearing from the record and submissions made by the learned counsel for claimants are exhaustively dealt with and no case for interference is made out. Only two aspects however may be referred to.
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Pandurang Mahadeo Kavade & Others Vs. Annaji Balwant Bokil & Others
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the effect:"Do defendants prove that the sale-deed, dated 9th January, 1926, is not binding upon them?" clearly cast the burden on the appellants. They never asked for recasting the issues and they went to trial on the above issue. Here again, both the trial court and the High Court have recorded a finding that the sale deed is binding on the appellants.In view of these circumstances the finding of the trial court as well as of the High Court that it was unnecessary for the plaintiff to lead any evidence on this aspect is correct. In fact we find from the judgment of the High Court that a request was made by the appellants to frame an issue on the question of legal necessity and remit the case to the trial court. But this request was in our view rightly disallowed. Therefore, the second contention has to be rejected. 16. This leaves us with the consideration of the question whether the decision in Civil Suit No. 80 of 1941 operates as res judicata. The present appellants had instituted civil cult No. 80 of 1941 on the file of the Civil Judge, Junior Division, Poona, for redemption of the sub-mortgage of May 7, 1885. As the sub-mortgagee raised an objection to the relief of redemption asked for by the appeltants herein, the present plaintiff was impleaded as the third defendant in that suit. He contended that the present appellants have no right to redeem the sub-mortgage after the execution of the sale deed Ex. 78 by Mahadev in favour of his father. An issue was raised in that suit as to whether the sale deed Ex. 78 was executed by Mahadev for legal necessity. There is no controversy that it was found in that suit that Ex. 78 was not binding on the appellants as it has not been executed by Mahadev for legal necessity. This finding, it is seen, has been confirmed by the District Court as well as by the High Court. 17. The appellants are, no doubt, justified in contending that a finding has been recorded against the present plaintiff in Civil Suit No. 80 of 1941 that Ex. 78 is not binding on them. If that decision operates as res judicata, the plaintiff will have to fail. The question is whether the said decision is res judicata in the present proceedings. There is no controversy that the court of the Civil Judge, Junior Division, which tried the civil Suit No. 80 of 1941 was a court of limited jurisdiction. The pecuniary jurisdiction of that court was limited to Rs. 5000/-. On the other hand, the present suit, which is for recovery of possession, has been valued for the purpose of jurisdiction at Rs. 11,001/-.In order to operate as res judicata it must be established that the previous decision was given by a court which had jurisdiction to try the present suit.So far as we could see the defendants have nowhere in the written statement alleged that the value of the property, for the recovery of which the plaintiff has now sued was worth in 1941 only Rs. 5000/- or less, in which case the Civil Judge, Junior Division, would have jurisdiction to try the present suit. The High Court has quite rightly pointed out, with reference to the sale deeds executed by the appellants in 1947 in favour of defendants 8, 9 and 10 that the suit property must have been worth even in 1941 much mare than Rupees 5000/-. If trial is so it follows that the Civil Judge, Junior Division, who tried Civil Suit No. 80 of 1941 had no jurisdiction to try the present suit. It follows that the decision in Civil Suit No. 80 of 1941 has been rightly held not to operate as res judicata both by the trial court and the High Court. 18. Mr. Sarjoo Prasad contended that the present suit should be really considered to be one for redemption, in which case the Civil Judge, Junior Division, would have jurisdiction to try the same. As we have already pointed out the present suit is for recovery of possession and cannot be considered to be one for redemption. This contention also cannot be accepted. 19. Mr. Sarjoo Prasad finally argued that there could not have been a merger of the rights in the equity of redemption and the mortgagees rights in Mahadev. His contention was that the equity of redemption was obtained by Mahadev in his individual right by inheriting his maternal-uncles estate. On the other hand, the mortgagees rights are obtained by Mahadev from his father Ramji Krishnaji. The mortgagees rights were owned by Mahadev and his sons as joint family property. As the two rights were owned by Mahadev under two different titles, there can be no merger in law. We do not think it necessary to go into this aspect of this case. We have already accepted the finding that the sale effected by Mahadev under Ex. 78 to the plaintiffs father is binding on the appellants. It has also been held that all the rights owned by Mahadev were transferred under the said transaction in favour of plaintiffs father. We have also held that there is no bar of res judicata. From all this it follows that at any rate in the hands of the plaintiffs father, both rights have merged and he was entitled to ask for recovery of possession. 20. Mr. Sarjoo Prasad again made a request that his clients may be given an opportunity to rise the contention that Ex. 78 is not binding on them as it is not supported by legal necessity. For this purpose he made a request that the appellants may be permitted to amend suitably the written statement and that the matter may be remitted to the trial court for further consideration. We have already indicated that a similar request was made to the High Court, which was rejected. We have also no hesitation in rejecting this request.
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0[ds]Based upon this recital it is argued that under this document Mahadev sold to the plaintiffs father only those rights which he had inherited from hise as the heir. No doubt, if this recital stood by itself, the argument on the side of the appellants, appears to be attractive. We have already mentioned that Mahadev was the sisters son of Ganpati who owned the rights in the equity of redemption. On inheritance to hise Mahadev became the owner of the equity of redemption. But we have also referred to the fact that Mahadev, on the date of Ex. 78, had also obtained, through his father Ramji Krishnaji, the rights of the mortgagee in the suit property. Therefore, on January 9, 1926, when Mahadev executed Ex. 78 he was the owner of both the equity of redemption and the mortgagees rights in the property. No doubt by inheritance to his maternal uncle he had obtained the equity of redemption in his individual right; but so far as the mortgagees rights are concerned, there is no controversy that those rights belonged to the family of Mahadev and his sons13. We have gone through the various recitals in Ex. 78 and they clearly, in our opinion, establish that Mahadev conveyed to the plaintiffs father whatever rights he had in the suit property. He did not reserve to himself or his family any rights in respect of the suit property under this document. The total consideration of the sale deed is Rs.. Out of this amount a sum of Rs. 900/was allowed to be retained by the plaintiffs father to pay off thesubmortgageof May 7, 1885. There was the usual indemnity clause by which Mahadev undertook to indemnify the plaintiffs father, if any obstruction was caused to his rights. There is the further recital "now neither we, nor our bhaubands nor heirs etc retain any kind of right, title and interest in it". This recital clearly shows that Mahadev was conveying all his rights in the suit property. All these recitals clearly show that the entire rights owned by Mahadev in the suit property were conveyed to the plaintiffs father. Therefore, we are not inclined to accept the contention of the learned counsel for the appellants that only the equity of redemption was conveyed to the plaintiffs father under this document14. The second contention of the learned counsel for the appellants does not require any serious consideration. It is no doubt true that an allenee from a karta of the joint family will have to establish that the transaction in his favour is for legal necessity and as such binding on the minor members of the family. But in this case, both the trial court as well as the High Court have concurrently held that the appellants did not plead that Ex. 78 is not binding on them on the ground that it has not been executed by their father Mahadev for legal necessity. It has been found both by the trial court as well as the High Court that in the absence of such a plea it was unnecessary for the plaintiff to have adduced evidence on this aspectWe are not inclined to accept this contention of the learned counsel. The recital is relied on by the appellants in the plaint have been made with reference to the plaintiffs plea that the decision in Civil Suit No. 80 of 1941 is not binding on him and that the appellants cannot rely on the same. In answer to this plea it is significant to note that the appellants did not raise any objection that Ex. 78 is not valid and binding them as it has not been executed for legal necessity. On the other hand their plea was that the decision in Civil Suit No. 80 of 1941 and the finding recorded therein operate as res judicata. Apart from these circumstances we also find that no specific issue has been framed on this point. On the other hand, issue No. 3 to the effect:"Do defendants prove that the, dated 9th January, 1926, is not binding upon them?"clearly cast the burden on the appellants. They never asked for recasting the issues and they went to trial on the above issue. Here again, both the trial court and the High Court have recorded a finding that the sale deed is binding on the appellants.In view of these circumstances the finding of the trial court as well as of the High Court that it was unnecessary for the plaintiff to lead any evidence on this aspect is correct. In fact we find from the judgment of the High Court that a request was made by the appellants to frame an issue on the question of legal necessity and remit the case to the trial court. But this request was in our view rightly disallowed. Therefore, the second contention has to be rejectedThe present appellants had instituted civil cult No. 80 of 1941 on the file of the Civil Judge, Junior Division, Poona, for redemption of thesubmortgageof May 7, 1885. As thee raised an objection to the relief of redemption asked for by the appeltants herein, the present plaintiff was impleaded as the third defendant in that suit. He contended that the present appellants have no right to redeem thesubmortgageafter the execution of the sale deed Ex. 78 by Mahadev in favour of his father. An issue was raised in that suit as to whether the sale deed Ex. 78 was executed by Mahadev for legal necessity. There is no controversy that it was found in that suit that Ex. 78 was not binding on the appellants as it has not been executed by Mahadev for legal necessity. This finding, it is seen, has been confirmed by the District Court as well as by the High Court17. The appellants are, no doubt, justified in contending that a finding has been recorded against the present plaintiff in Civil Suit No. 80 of 1941 that Ex. 78 is not binding on them. If that decision operates as res judicata, the plaintiff will have to fail. The question is whether the said decision is res judicata in the present proceedings. There is no controversy that the court of the Civil Judge, Junior Division, which tried the civil Suit No. 80 of 1941 was a court of limited jurisdiction. The pecuniary jurisdiction of that court was limited to Rs.. On the other hand, the present suit, which is for recovery of possession, has been valued for the purpose of jurisdiction at Rs.n order to operate as res judicata it must be established that the previous decision was given by a court which had jurisdiction to try the present suit.So far as we could see the defendants have nowhere in the written statement alleged that the value of the property, for the recovery of which the plaintiff has now sued was worth in 1941 only Rs. 5000/or less, in which case the Civil Judge, Junior Division, would have jurisdiction to try the present suit. The High Court has quite rightly pointed out, with reference to the sale deeds executed by the appellants in 1947 in favour of defendants 8, 9 and 10 that the suit property must have been worth even in 1941 much mare than Rupees. If trial is so it follows that the Civil Judge, Junior Division, who tried Civil Suit No. 80 of 1941 had no jurisdiction to try the present suit. It follows that the decision in Civil Suit No. 80 of 1941 has been rightly held not to operate as res judicata both by the trial court and the High CourtOn the other hand, the mortgagees rights are obtained by Mahadev from his father Ramji Krishnaji. The mortgagees rights were owned by Mahadev and his sons as joint family property. As the two rights were owned by Mahadev under two different titles, there can be no merger in law. We do not think it necessary to go into this aspect of this case. We have already accepted the finding that the sale effected by Mahadev under Ex. 78 to the plaintiffs father is binding on the appellants. It has also been held that all the rights owned by Mahadev were transferred under the said transaction in favour of plaintiffs father. We have also held that there is no bar of res judicata. From all this it follows that at any rate in the hands of the plaintiffs father, both rights have merged and he was entitled to ask for recovery of possessionFor this purpose he made a request that the appellants may be permitted to amend suitably the written statement and that the matter may be remitted to the trial court for further consideration. We have already indicated that a similar request was made to the High Court, which was rejected. We have also no hesitation in rejecting this request.
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the effect:"Do defendants prove that the sale-deed, dated 9th January, 1926, is not binding upon them?" clearly cast the burden on the appellants. They never asked for recasting the issues and they went to trial on the above issue. Here again, both the trial court and the High Court have recorded a finding that the sale deed is binding on the appellants.In view of these circumstances the finding of the trial court as well as of the High Court that it was unnecessary for the plaintiff to lead any evidence on this aspect is correct. In fact we find from the judgment of the High Court that a request was made by the appellants to frame an issue on the question of legal necessity and remit the case to the trial court. But this request was in our view rightly disallowed. Therefore, the second contention has to be rejected. 16. This leaves us with the consideration of the question whether the decision in Civil Suit No. 80 of 1941 operates as res judicata. The present appellants had instituted civil cult No. 80 of 1941 on the file of the Civil Judge, Junior Division, Poona, for redemption of the sub-mortgage of May 7, 1885. As the sub-mortgagee raised an objection to the relief of redemption asked for by the appeltants herein, the present plaintiff was impleaded as the third defendant in that suit. He contended that the present appellants have no right to redeem the sub-mortgage after the execution of the sale deed Ex. 78 by Mahadev in favour of his father. An issue was raised in that suit as to whether the sale deed Ex. 78 was executed by Mahadev for legal necessity. There is no controversy that it was found in that suit that Ex. 78 was not binding on the appellants as it has not been executed by Mahadev for legal necessity. This finding, it is seen, has been confirmed by the District Court as well as by the High Court. 17. The appellants are, no doubt, justified in contending that a finding has been recorded against the present plaintiff in Civil Suit No. 80 of 1941 that Ex. 78 is not binding on them. If that decision operates as res judicata, the plaintiff will have to fail. The question is whether the said decision is res judicata in the present proceedings. There is no controversy that the court of the Civil Judge, Junior Division, which tried the civil Suit No. 80 of 1941 was a court of limited jurisdiction. The pecuniary jurisdiction of that court was limited to Rs. 5000/-. On the other hand, the present suit, which is for recovery of possession, has been valued for the purpose of jurisdiction at Rs. 11,001/-.In order to operate as res judicata it must be established that the previous decision was given by a court which had jurisdiction to try the present suit.So far as we could see the defendants have nowhere in the written statement alleged that the value of the property, for the recovery of which the plaintiff has now sued was worth in 1941 only Rs. 5000/- or less, in which case the Civil Judge, Junior Division, would have jurisdiction to try the present suit. The High Court has quite rightly pointed out, with reference to the sale deeds executed by the appellants in 1947 in favour of defendants 8, 9 and 10 that the suit property must have been worth even in 1941 much mare than Rupees 5000/-. If trial is so it follows that the Civil Judge, Junior Division, who tried Civil Suit No. 80 of 1941 had no jurisdiction to try the present suit. It follows that the decision in Civil Suit No. 80 of 1941 has been rightly held not to operate as res judicata both by the trial court and the High Court. 18. Mr. Sarjoo Prasad contended that the present suit should be really considered to be one for redemption, in which case the Civil Judge, Junior Division, would have jurisdiction to try the same. As we have already pointed out the present suit is for recovery of possession and cannot be considered to be one for redemption. This contention also cannot be accepted. 19. Mr. Sarjoo Prasad finally argued that there could not have been a merger of the rights in the equity of redemption and the mortgagees rights in Mahadev. His contention was that the equity of redemption was obtained by Mahadev in his individual right by inheriting his maternal-uncles estate. On the other hand, the mortgagees rights are obtained by Mahadev from his father Ramji Krishnaji. The mortgagees rights were owned by Mahadev and his sons as joint family property. As the two rights were owned by Mahadev under two different titles, there can be no merger in law. We do not think it necessary to go into this aspect of this case. We have already accepted the finding that the sale effected by Mahadev under Ex. 78 to the plaintiffs father is binding on the appellants. It has also been held that all the rights owned by Mahadev were transferred under the said transaction in favour of plaintiffs father. We have also held that there is no bar of res judicata. From all this it follows that at any rate in the hands of the plaintiffs father, both rights have merged and he was entitled to ask for recovery of possession. 20. Mr. Sarjoo Prasad again made a request that his clients may be given an opportunity to rise the contention that Ex. 78 is not binding on them as it is not supported by legal necessity. For this purpose he made a request that the appellants may be permitted to amend suitably the written statement and that the matter may be remitted to the trial court for further consideration. We have already indicated that a similar request was made to the High Court, which was rejected. We have also no hesitation in rejecting this request.
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### Explanation:
executed by their father Mahadev for legal necessity. It has been found both by the trial court as well as the High Court that in the absence of such a plea it was unnecessary for the plaintiff to have adduced evidence on this aspectWe are not inclined to accept this contention of the learned counsel. The recital is relied on by the appellants in the plaint have been made with reference to the plaintiffs plea that the decision in Civil Suit No. 80 of 1941 is not binding on him and that the appellants cannot rely on the same. In answer to this plea it is significant to note that the appellants did not raise any objection that Ex. 78 is not valid and binding them as it has not been executed for legal necessity. On the other hand their plea was that the decision in Civil Suit No. 80 of 1941 and the finding recorded therein operate as res judicata. Apart from these circumstances we also find that no specific issue has been framed on this point. On the other hand, issue No. 3 to the effect:"Do defendants prove that the, dated 9th January, 1926, is not binding upon them?"clearly cast the burden on the appellants. They never asked for recasting the issues and they went to trial on the above issue. Here again, both the trial court and the High Court have recorded a finding that the sale deed is binding on the appellants.In view of these circumstances the finding of the trial court as well as of the High Court that it was unnecessary for the plaintiff to lead any evidence on this aspect is correct. In fact we find from the judgment of the High Court that a request was made by the appellants to frame an issue on the question of legal necessity and remit the case to the trial court. But this request was in our view rightly disallowed. Therefore, the second contention has to be rejectedThe present appellants had instituted civil cult No. 80 of 1941 on the file of the Civil Judge, Junior Division, Poona, for redemption of thesubmortgageof May 7, 1885. As thee raised an objection to the relief of redemption asked for by the appeltants herein, the present plaintiff was impleaded as the third defendant in that suit. He contended that the present appellants have no right to redeem thesubmortgageafter the execution of the sale deed Ex. 78 by Mahadev in favour of his father. An issue was raised in that suit as to whether the sale deed Ex. 78 was executed by Mahadev for legal necessity. There is no controversy that it was found in that suit that Ex. 78 was not binding on the appellants as it has not been executed by Mahadev for legal necessity. This finding, it is seen, has been confirmed by the District Court as well as by the High Court17. The appellants are, no doubt, justified in contending that a finding has been recorded against the present plaintiff in Civil Suit No. 80 of 1941 that Ex. 78 is not binding on them. If that decision operates as res judicata, the plaintiff will have to fail. The question is whether the said decision is res judicata in the present proceedings. There is no controversy that the court of the Civil Judge, Junior Division, which tried the civil Suit No. 80 of 1941 was a court of limited jurisdiction. The pecuniary jurisdiction of that court was limited to Rs.. On the other hand, the present suit, which is for recovery of possession, has been valued for the purpose of jurisdiction at Rs.n order to operate as res judicata it must be established that the previous decision was given by a court which had jurisdiction to try the present suit.So far as we could see the defendants have nowhere in the written statement alleged that the value of the property, for the recovery of which the plaintiff has now sued was worth in 1941 only Rs. 5000/or less, in which case the Civil Judge, Junior Division, would have jurisdiction to try the present suit. The High Court has quite rightly pointed out, with reference to the sale deeds executed by the appellants in 1947 in favour of defendants 8, 9 and 10 that the suit property must have been worth even in 1941 much mare than Rupees. If trial is so it follows that the Civil Judge, Junior Division, who tried Civil Suit No. 80 of 1941 had no jurisdiction to try the present suit. It follows that the decision in Civil Suit No. 80 of 1941 has been rightly held not to operate as res judicata both by the trial court and the High CourtOn the other hand, the mortgagees rights are obtained by Mahadev from his father Ramji Krishnaji. The mortgagees rights were owned by Mahadev and his sons as joint family property. As the two rights were owned by Mahadev under two different titles, there can be no merger in law. We do not think it necessary to go into this aspect of this case. We have already accepted the finding that the sale effected by Mahadev under Ex. 78 to the plaintiffs father is binding on the appellants. It has also been held that all the rights owned by Mahadev were transferred under the said transaction in favour of plaintiffs father. We have also held that there is no bar of res judicata. From all this it follows that at any rate in the hands of the plaintiffs father, both rights have merged and he was entitled to ask for recovery of possessionFor this purpose he made a request that the appellants may be permitted to amend suitably the written statement and that the matter may be remitted to the trial court for further consideration. We have already indicated that a similar request was made to the High Court, which was rejected. We have also no hesitation in rejecting this request.
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State Bank of Bikaner and Jaipur Vs. Gopal Sahai Pareek
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Bhargava, J. 1. The respondent Gopal Sahai Pareek, was employed by the Bank of Jaipur, Ltd. in the year 1948 as a clerk. In 1953, he was posted at the Nawalgarh branch of the bark. On 20 April, 1953, an award given by the All-India Industrial Tribunal (Bank Disputes), Bombay, in a dispute referred by the Central Government between the barking companies and their workmen, was published in the Gazette of India. The Chairman of the tribunal was Sri S. Panchapagesa Sastri and the award is known as the Sastri award. Subsequently, on 22 June, 1953, by a resolution of the board of directors of the bank, the respondent was authorized to carry out duties of supervisory nature. In July 1955, he was transferred to the Jaipur branch of the bank. The case of the appellant which is now the successor to the Bank of Jaipur, Ltd., was that, with effect from 21 July, 1955, on his transfer to the Jaipur branch, the respondent ceased to do work of supervisory nature and was doing the work of an ordinary routine clerk. On the other hand, the case of the respondent was that he continued to do the work of supervisory nature up to 31 December, 1956, even after his posting to the Jaipur branch and that it was with effect from 1 January, 1957 that the bank discontinued to take supervisory work from the respondent, because he made representations for payment of special allowance under the Sastri award. Since no special allowance was paid by the bank, or the appellant, the successor bark, the respondent moved an application under S.33C(2) of the Industrial Disputes Act, 1947 (14 of 1947), before the Central Government Labour Court, Delhi, claiming supervisory allowance with effect from 20 July, 1955 up to 31 May, 1962. The labour court at Jaipur, to which respondents application was subsequently transferred, allowed this claim and, consequently, the appellant has come up to this Court against that order by special leave.As the facts enumerated above show, it is the common case of the parties that up to 19 July, 1955. When the respondent was working in the Nawalgarh branch of the bank of Jaipur, Ltd, he was carrying on supervisory duties. Further, it is the common case of both the parties that with effect from 1 January, 1957, the respondent has not been carrying on any supervisory duties. The respondent in Para. 6 of his application under S 33C (2), in clear terms, admitted that the bark discontinued to take supervisory work from him from the last week of December 1956. The claim of the respondent for supervisory allowance is for the whole of the period from 20 July, 1955 to 31 May, 1962. This period is thus clearly divisible into two parts. The first part is between 20 July, 1955 to 31 December, 1956 and the second from January 1957 to 31 May, 1962. 2. So far as the second period is concerned, as has been noticed earlier, the respondent himself admitted that he was not carrying on any supervisory duties as the bark discontinued to take such work from him. The labour court in this case, as in the case of State Bank of Bikaner and Jaipur v. R. L. Khandelwal (vide p. 589 supra) decided by us to today, held that the respondent having been granted the status of a supervisor by a resolution of the board of directors dated 22 June, 1953, could not lose that status by subsequent discontinuation by the bank of taking supervisory work from him and, consequently, allowed the claim of the respondent for special allowance for this period. The facts in the present case are similar to those in the case mentioned above and we have already indicated our reasons in that case for holding that this view of the labour court is incorrect. On the principle laid down in the case, it has to be held, that, since the respondent was, in fact, not doing any supervisory work during this period, he cannot claim supervisory allowance under the Sastri award. The labour court, in allowing this claim in respect of this period, thus committed a clear error.With regard to the first period between 20 July, 1955 and 31 December, 1956, there is a dispute between the parties whether the respondent was or was not carrying on supervisory duties. It is also clear that the right of the respondent to receive special allowance for this period will depend on a finding of fact whether he was carrying on such duties during this period or not, 3. The labour court should, therefore, have recorded a clear finding whether, in fact, the respondent was or was not doing supervisory work during this period. There being no such finding of fact, we had to indicate to counsel for parties that if the parties continued to dispute the claim in respect of this period, it will be necessary to remand this case to the labour court for recording a finding of fact on this issue Counsel appearing the parties have stated before us that, in order to avoid this further proceeding, the appellant is willing to give to the respondent half the amount claimed as supervisory allowance for this period between 20 July, 1955 and 31 December, 1956, as ex gratia payment, without conceding that the respondent was doing supervisory work, and the respondent agrees to accept this amount. Under this agreement between the parties, the respondent is to be given a sum of Rs. 347 by the appellant.
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1[ds]3. The labour court should, therefore, have recorded a clear finding whether, in fact, the respondent was or was not doing supervisory work during this period. There being no such finding of fact, we had to indicate to counsel for parties that if the parties continued to dispute the claim in respect of this period, it will be necessary to remand this case to the labour court for recording a finding of fact on this issue Counsel appearing the parties have stated before us that, in order to avoid this further proceeding, the appellant is willing to give to the respondent half the amount claimed as supervisory allowance for this period between 20 July, 1955 and 31 December, 1956, as ex gratia payment, without conceding that the respondent was doing supervisory work, and the respondent agrees to accept this amount. Under this agreement between the parties, the respondent is to be given a sum of Rs. 347 by the appellantThe facts in the present case are similar to those in the case mentioned above and we have already indicated our reasons in that case for holding that this view of the labour court is incorrect. On the principle laid down in the case, it has to be held, that, since the respondent was, in fact, not doing any supervisory work during this period, he cannot claim supervisory allowance under the Sastri award. The labour court, in allowing this claim in respect of this period, thus committed a clear error.With regard to the first period between 20 July, 1955 and 31 December, 1956,there is a dispute between the parties whether the respondent was or was not carrying on supervisory duties.It is also clear that the right of the respondent to receive special allowance for this period will depend on a finding of fact whether he was carrying on such duties during this period or not,
| 1 | 1,052 | 352 |
### 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:
Bhargava, J. 1. The respondent Gopal Sahai Pareek, was employed by the Bank of Jaipur, Ltd. in the year 1948 as a clerk. In 1953, he was posted at the Nawalgarh branch of the bark. On 20 April, 1953, an award given by the All-India Industrial Tribunal (Bank Disputes), Bombay, in a dispute referred by the Central Government between the barking companies and their workmen, was published in the Gazette of India. The Chairman of the tribunal was Sri S. Panchapagesa Sastri and the award is known as the Sastri award. Subsequently, on 22 June, 1953, by a resolution of the board of directors of the bank, the respondent was authorized to carry out duties of supervisory nature. In July 1955, he was transferred to the Jaipur branch of the bank. The case of the appellant which is now the successor to the Bank of Jaipur, Ltd., was that, with effect from 21 July, 1955, on his transfer to the Jaipur branch, the respondent ceased to do work of supervisory nature and was doing the work of an ordinary routine clerk. On the other hand, the case of the respondent was that he continued to do the work of supervisory nature up to 31 December, 1956, even after his posting to the Jaipur branch and that it was with effect from 1 January, 1957 that the bank discontinued to take supervisory work from the respondent, because he made representations for payment of special allowance under the Sastri award. Since no special allowance was paid by the bank, or the appellant, the successor bark, the respondent moved an application under S.33C(2) of the Industrial Disputes Act, 1947 (14 of 1947), before the Central Government Labour Court, Delhi, claiming supervisory allowance with effect from 20 July, 1955 up to 31 May, 1962. The labour court at Jaipur, to which respondents application was subsequently transferred, allowed this claim and, consequently, the appellant has come up to this Court against that order by special leave.As the facts enumerated above show, it is the common case of the parties that up to 19 July, 1955. When the respondent was working in the Nawalgarh branch of the bank of Jaipur, Ltd, he was carrying on supervisory duties. Further, it is the common case of both the parties that with effect from 1 January, 1957, the respondent has not been carrying on any supervisory duties. The respondent in Para. 6 of his application under S 33C (2), in clear terms, admitted that the bark discontinued to take supervisory work from him from the last week of December 1956. The claim of the respondent for supervisory allowance is for the whole of the period from 20 July, 1955 to 31 May, 1962. This period is thus clearly divisible into two parts. The first part is between 20 July, 1955 to 31 December, 1956 and the second from January 1957 to 31 May, 1962. 2. So far as the second period is concerned, as has been noticed earlier, the respondent himself admitted that he was not carrying on any supervisory duties as the bark discontinued to take such work from him. The labour court in this case, as in the case of State Bank of Bikaner and Jaipur v. R. L. Khandelwal (vide p. 589 supra) decided by us to today, held that the respondent having been granted the status of a supervisor by a resolution of the board of directors dated 22 June, 1953, could not lose that status by subsequent discontinuation by the bank of taking supervisory work from him and, consequently, allowed the claim of the respondent for special allowance for this period. The facts in the present case are similar to those in the case mentioned above and we have already indicated our reasons in that case for holding that this view of the labour court is incorrect. On the principle laid down in the case, it has to be held, that, since the respondent was, in fact, not doing any supervisory work during this period, he cannot claim supervisory allowance under the Sastri award. The labour court, in allowing this claim in respect of this period, thus committed a clear error.With regard to the first period between 20 July, 1955 and 31 December, 1956, there is a dispute between the parties whether the respondent was or was not carrying on supervisory duties. It is also clear that the right of the respondent to receive special allowance for this period will depend on a finding of fact whether he was carrying on such duties during this period or not, 3. The labour court should, therefore, have recorded a clear finding whether, in fact, the respondent was or was not doing supervisory work during this period. There being no such finding of fact, we had to indicate to counsel for parties that if the parties continued to dispute the claim in respect of this period, it will be necessary to remand this case to the labour court for recording a finding of fact on this issue Counsel appearing the parties have stated before us that, in order to avoid this further proceeding, the appellant is willing to give to the respondent half the amount claimed as supervisory allowance for this period between 20 July, 1955 and 31 December, 1956, as ex gratia payment, without conceding that the respondent was doing supervisory work, and the respondent agrees to accept this amount. Under this agreement between the parties, the respondent is to be given a sum of Rs. 347 by the appellant.
### Response:
1
### Explanation:
3. The labour court should, therefore, have recorded a clear finding whether, in fact, the respondent was or was not doing supervisory work during this period. There being no such finding of fact, we had to indicate to counsel for parties that if the parties continued to dispute the claim in respect of this period, it will be necessary to remand this case to the labour court for recording a finding of fact on this issue Counsel appearing the parties have stated before us that, in order to avoid this further proceeding, the appellant is willing to give to the respondent half the amount claimed as supervisory allowance for this period between 20 July, 1955 and 31 December, 1956, as ex gratia payment, without conceding that the respondent was doing supervisory work, and the respondent agrees to accept this amount. Under this agreement between the parties, the respondent is to be given a sum of Rs. 347 by the appellantThe facts in the present case are similar to those in the case mentioned above and we have already indicated our reasons in that case for holding that this view of the labour court is incorrect. On the principle laid down in the case, it has to be held, that, since the respondent was, in fact, not doing any supervisory work during this period, he cannot claim supervisory allowance under the Sastri award. The labour court, in allowing this claim in respect of this period, thus committed a clear error.With regard to the first period between 20 July, 1955 and 31 December, 1956,there is a dispute between the parties whether the respondent was or was not carrying on supervisory duties.It is also clear that the right of the respondent to receive special allowance for this period will depend on a finding of fact whether he was carrying on such duties during this period or not,
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Kumari Rekha Bharati Vs. The State of Bihar & Ors
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appointment, on the ground that at the relevant time, her father was a government teacher. The order of the District Magistrate, Muzaffarpur was confirmed by the Appellate Authority i.e. Commissioner, Tirhut Division, Muzaffarpur vide order dated 30.10.2013. 5. As against the order of cancellation of the appointment, as confirmed by the Appellate Authority, 9 th Respondent herein, has filed a writ petition before the High Court. The writ petition was allowed by the learned Single Judge by order dated 07.09.2016 passed in CWJC No.2120 of 2014. The order of the learned Single Judge was subject matter of Letters Patent Appeal No. 1988 of 2016. By impugned order dated 26.04.2017, the Division Bench of the High Court dismissed the appeal filed by the appellant herein, confirming the order of the learned Single Judge. Thus, the appellant in Letters Patent Appeal before the High Court, is appellant before this Court in the present appeal. 6. We have heard Mr. Kumar Dushyant Singh, learned counsel appearing for the appellant and Mr. Saket Singh, learned counsel appearing for the respondent Nos.1-8. Respondent No.9 though served, has not chosen to appear. 7. Appointments of Anganwadi Sevikas, during the relevant time, was governed by guidelines which were issued in the shape of a policy contained in Margdarshika – 2006. Clause 3 of the guidelines deals with the qualifications / conditions for selection to the post of Anganwadi Sevika. The relevant guidelines for the purpose of this appeal in Clause 3(E) read as under: 3.Qualifications / Conditions for selection of Anganwadi Sevikain: A. ... ... ... B. ... ... ... C. ... ... ... D. ... ... ... E. Public Servant, Head, Member of Panchayat Samiti / Ward Member / Member of District Council, etc., themselves or their relatives, sellers of the various public articles (such as Public Distribution System vendor, Mobile Kerosene Oil Dealer, Inter-Departmental post office employee, etc.) relatives such as daughter / wife / daughter-in-law of the Govt. and semi–govt. Servants, will not be selected for this post. 8. The pointed argument of the learned counsel appearing for the appellant is that the father of Respondent No.9 was a government servant and was serving as teacher in a government school, as such, 9 th Respondent was not eligible for appointment in view of Clause 3 of the Guidelines dated 03.10.2006. It is contended that though appointment of 9th Respondent was rightly cancelled by the Collector, Muzaffarpur and the said order was confirmed by the Appellate Authority i.e. Commissioner, Tirhut Division, Muzaffarpur, the learned Single Judge interfered with such orders in the petition filed under Article 226 of the Constitution of India without assigning valid reasons. It is submitted that learned Single Judge has misconstrued the relevant guidelines and allowed the writ petition of the 9th Respondent. On the other hand, it is the case of the respondents that 9th Respondent is married daughter of a government servant and her matrimonial home is in the district of Muzaffarpur, whereas, her paternal home is situated in the district of Vaishali. It is, further, submitted that the father of 9th Respondent was posted somewhere in the district of Vaishali as a teacher, therefore, sub-clause E of Clause 3 of the guidelines was rightly interpreted by the learned Single Judge, and allowed the Writ Petition. It is submitted that said order is also confirmed in LPA. It is submitted that there are no grounds to interfere with the impugned order passed by the High Court. 9. Having heard the learned counsel for the parties, we have perused the impugned order and other material placed on record. 10. It is not in dispute that at the relevant time, selections were governed by guidelines, issued by the concerned department on 03.10.2006. From a reading of Clause 3 of the guidelines, it is clear that relatives such as daughter/wife/daughter-in-law of the government servant is ineligible for appointment as Anganwadi Sevika. The learned Single Judge has interpreted Clause 3 of the guidelines and held that the said guidelines are to be applied only for unmarried daughters. Further, it is held that the 9th Respondent after her marriage is residing in the district of Muzaffarpur, which is her matrimonial home. In view of her case that her paternal home is in the district of Vaishali, the High Court was of the view that she is eligible for appointment in the district of Muzaffarpur, as her father was working as a teacher in the district of Vaishali. 11. The learned Single Judge of the High Court by interpreting the guidelines has held that, though the paternal home of the 9th Respondent is in the district of Vaishali but after her marriage, she is residing at her matrimonial home in the district of Muzaffarpur, as such she is to be treated as eligible candidate. Such interpretation runs contrary to Clause 3 of the guidelines. For the purpose of considering the eligibility the guideline as indicated under sub-clause (E) is to be construed as it reads. No distinction can be drawn between a married daughter and unmarried daughter for the purpose of considering the eligibility as per the guidelines. It is quite common in rural areas, the paternal home and maternal home may be in the same village sometimes. When the criteria is notified in the guidelines such guidelines have to be interpreted as it is without deviating the same keeping in mind the facts of a particular case. Even the Division Bench has not considered the guidelines in proper perspective and affirmed the judgment of the learned Single Judge. 12. It is brought to our notice that such Clause 3(E) of the guidelines was struck down subsequently by the High Court on 06.05.2010. As much as the selection relates to the year 2006, we have to consider the guidelines which were applicable during the relevant time. At the same time in view of the subsequent development, no direction can be granted to appoint the appellant, and selections are to be made by issuing fresh notification.
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1[ds]9. Having heard the learned counsel for the parties, we have perused the impugned order and other material placed on record.10. It is not in dispute that at the relevant time, selections were governed by guidelines, issued by the concerned department on 03.10.2006. From a reading of Clause 3 of the guidelines, it is clear that relatives such as daughter/wife/daughter-in-law of the government servant is ineligible for appointment as Anganwadi Sevika. The learned Single Judge has interpreted Clause 3 of the guidelines and held that the said guidelines are to be applied only for unmarried daughters. Further, it is held that the 9th Respondent after her marriage is residing in the district of Muzaffarpur, which is her matrimonial home. In view of her case that her paternal home is in the district of Vaishali, the High Court was of the view that she is eligible for appointment in the district of Muzaffarpur, as her father was working as a teacher in the district of Vaishali.11. The learned Single Judge of the High Court by interpreting the guidelines has held that, though the paternal home of the 9th Respondent is in the district of Vaishali but after her marriage, she is residing at her matrimonial home in the district of Muzaffarpur, as such she is to be treated as eligible candidate. Such interpretation runs contrary to Clause 3 of the guidelines. For the purpose of considering the eligibility the guideline as indicated under sub-clause (E) is to be construed as it reads. No distinction can be drawn between a married daughter and unmarried daughter for the purpose of considering the eligibility as per the guidelines. It is quite common in rural areas, the paternal home and maternal home may be in the same village sometimes. When the criteria is notified in the guidelines such guidelines have to be interpreted as it is without deviating the same keeping in mind the facts of a particular case. Even the Division Bench has not considered the guidelines in proper perspective and affirmed the judgment of the learned Single Judge.12. It is brought to our notice that such Clause 3(E) of the guidelines was struck down subsequently by the High Court on 06.05.2010. As much as the selection relates to the year 2006, we have to consider the guidelines which were applicable during the relevant time. At the same time in view of the subsequent development, no direction can be granted to appoint the appellant, and selections are to be made by issuing fresh notification.
| 1 | 1,438 | 461 |
### 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:
appointment, on the ground that at the relevant time, her father was a government teacher. The order of the District Magistrate, Muzaffarpur was confirmed by the Appellate Authority i.e. Commissioner, Tirhut Division, Muzaffarpur vide order dated 30.10.2013. 5. As against the order of cancellation of the appointment, as confirmed by the Appellate Authority, 9 th Respondent herein, has filed a writ petition before the High Court. The writ petition was allowed by the learned Single Judge by order dated 07.09.2016 passed in CWJC No.2120 of 2014. The order of the learned Single Judge was subject matter of Letters Patent Appeal No. 1988 of 2016. By impugned order dated 26.04.2017, the Division Bench of the High Court dismissed the appeal filed by the appellant herein, confirming the order of the learned Single Judge. Thus, the appellant in Letters Patent Appeal before the High Court, is appellant before this Court in the present appeal. 6. We have heard Mr. Kumar Dushyant Singh, learned counsel appearing for the appellant and Mr. Saket Singh, learned counsel appearing for the respondent Nos.1-8. Respondent No.9 though served, has not chosen to appear. 7. Appointments of Anganwadi Sevikas, during the relevant time, was governed by guidelines which were issued in the shape of a policy contained in Margdarshika – 2006. Clause 3 of the guidelines deals with the qualifications / conditions for selection to the post of Anganwadi Sevika. The relevant guidelines for the purpose of this appeal in Clause 3(E) read as under: 3.Qualifications / Conditions for selection of Anganwadi Sevikain: A. ... ... ... B. ... ... ... C. ... ... ... D. ... ... ... E. Public Servant, Head, Member of Panchayat Samiti / Ward Member / Member of District Council, etc., themselves or their relatives, sellers of the various public articles (such as Public Distribution System vendor, Mobile Kerosene Oil Dealer, Inter-Departmental post office employee, etc.) relatives such as daughter / wife / daughter-in-law of the Govt. and semi–govt. Servants, will not be selected for this post. 8. The pointed argument of the learned counsel appearing for the appellant is that the father of Respondent No.9 was a government servant and was serving as teacher in a government school, as such, 9 th Respondent was not eligible for appointment in view of Clause 3 of the Guidelines dated 03.10.2006. It is contended that though appointment of 9th Respondent was rightly cancelled by the Collector, Muzaffarpur and the said order was confirmed by the Appellate Authority i.e. Commissioner, Tirhut Division, Muzaffarpur, the learned Single Judge interfered with such orders in the petition filed under Article 226 of the Constitution of India without assigning valid reasons. It is submitted that learned Single Judge has misconstrued the relevant guidelines and allowed the writ petition of the 9th Respondent. On the other hand, it is the case of the respondents that 9th Respondent is married daughter of a government servant and her matrimonial home is in the district of Muzaffarpur, whereas, her paternal home is situated in the district of Vaishali. It is, further, submitted that the father of 9th Respondent was posted somewhere in the district of Vaishali as a teacher, therefore, sub-clause E of Clause 3 of the guidelines was rightly interpreted by the learned Single Judge, and allowed the Writ Petition. It is submitted that said order is also confirmed in LPA. It is submitted that there are no grounds to interfere with the impugned order passed by the High Court. 9. Having heard the learned counsel for the parties, we have perused the impugned order and other material placed on record. 10. It is not in dispute that at the relevant time, selections were governed by guidelines, issued by the concerned department on 03.10.2006. From a reading of Clause 3 of the guidelines, it is clear that relatives such as daughter/wife/daughter-in-law of the government servant is ineligible for appointment as Anganwadi Sevika. The learned Single Judge has interpreted Clause 3 of the guidelines and held that the said guidelines are to be applied only for unmarried daughters. Further, it is held that the 9th Respondent after her marriage is residing in the district of Muzaffarpur, which is her matrimonial home. In view of her case that her paternal home is in the district of Vaishali, the High Court was of the view that she is eligible for appointment in the district of Muzaffarpur, as her father was working as a teacher in the district of Vaishali. 11. The learned Single Judge of the High Court by interpreting the guidelines has held that, though the paternal home of the 9th Respondent is in the district of Vaishali but after her marriage, she is residing at her matrimonial home in the district of Muzaffarpur, as such she is to be treated as eligible candidate. Such interpretation runs contrary to Clause 3 of the guidelines. For the purpose of considering the eligibility the guideline as indicated under sub-clause (E) is to be construed as it reads. No distinction can be drawn between a married daughter and unmarried daughter for the purpose of considering the eligibility as per the guidelines. It is quite common in rural areas, the paternal home and maternal home may be in the same village sometimes. When the criteria is notified in the guidelines such guidelines have to be interpreted as it is without deviating the same keeping in mind the facts of a particular case. Even the Division Bench has not considered the guidelines in proper perspective and affirmed the judgment of the learned Single Judge. 12. It is brought to our notice that such Clause 3(E) of the guidelines was struck down subsequently by the High Court on 06.05.2010. As much as the selection relates to the year 2006, we have to consider the guidelines which were applicable during the relevant time. At the same time in view of the subsequent development, no direction can be granted to appoint the appellant, and selections are to be made by issuing fresh notification.
### Response:
1
### Explanation:
9. Having heard the learned counsel for the parties, we have perused the impugned order and other material placed on record.10. It is not in dispute that at the relevant time, selections were governed by guidelines, issued by the concerned department on 03.10.2006. From a reading of Clause 3 of the guidelines, it is clear that relatives such as daughter/wife/daughter-in-law of the government servant is ineligible for appointment as Anganwadi Sevika. The learned Single Judge has interpreted Clause 3 of the guidelines and held that the said guidelines are to be applied only for unmarried daughters. Further, it is held that the 9th Respondent after her marriage is residing in the district of Muzaffarpur, which is her matrimonial home. In view of her case that her paternal home is in the district of Vaishali, the High Court was of the view that she is eligible for appointment in the district of Muzaffarpur, as her father was working as a teacher in the district of Vaishali.11. The learned Single Judge of the High Court by interpreting the guidelines has held that, though the paternal home of the 9th Respondent is in the district of Vaishali but after her marriage, she is residing at her matrimonial home in the district of Muzaffarpur, as such she is to be treated as eligible candidate. Such interpretation runs contrary to Clause 3 of the guidelines. For the purpose of considering the eligibility the guideline as indicated under sub-clause (E) is to be construed as it reads. No distinction can be drawn between a married daughter and unmarried daughter for the purpose of considering the eligibility as per the guidelines. It is quite common in rural areas, the paternal home and maternal home may be in the same village sometimes. When the criteria is notified in the guidelines such guidelines have to be interpreted as it is without deviating the same keeping in mind the facts of a particular case. Even the Division Bench has not considered the guidelines in proper perspective and affirmed the judgment of the learned Single Judge.12. It is brought to our notice that such Clause 3(E) of the guidelines was struck down subsequently by the High Court on 06.05.2010. As much as the selection relates to the year 2006, we have to consider the guidelines which were applicable during the relevant time. At the same time in view of the subsequent development, no direction can be granted to appoint the appellant, and selections are to be made by issuing fresh notification.
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Mohammad Sagiruddin Vs. Dist. Mechanical Engineer, North East Frontier Railway & Others
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Palekar, J.1. This is an appeal by special leave from a judgment and order of the Patna High Court in Misc. Judicial Case No. 944 of 1962 dismissing the petition.2. The appellant had joined service in the old Bengal Assam Railway, now known as North East Frontier Railway as a substitute cleaner some time in 1940. In due course, in 1956 he was promoted to officiate as an Engine Driver C and worked in that capacity till December, 1961. He was then in the scale of Rs. 150/- to Rs. 240/- and was actually drawing the pay of Rs. 160/per month. Engine Drivers have to undergo periodical tests for their vision. On December 25, 1961 the appellant was examined by the District Medical Officer, Katihar who reported that the appellant was medically unfit for service in class A-1 i.e. for driving Railway Engines though he was fit for service in class B-2. The appellant appealed to the Chief Medical Officer who, however, confirmed, the report of the District Medical Officer. The Railway Authorities thereupon in accordance with Rule 152 of the Indian Railway Establishment Code, Volume 1, 1959 granted the appellant leave that was due to him and, in the meantime, offered to absorb him in a post for which he was fit namely as Pump Engine Driver. The scale of this post was Rs. 75/- to Rs. 110/- and the appellant was given the maximum of the scale namely Rs. 110/- per month The appellant accepted the post but without prejudice, and thereafter filed the petition on December 12, 1962 complaining that he had been reduced in rank by way of punishment without complying with the mandatory provisions of Article 311 of the Constitution. The petition was dismissed on October 12 1965 and it is from this Order that the present appeal is filed.3. There is no substance in this appeal. It is not disputed that in the medical examination it was certified that he was unfit for service in class A-1 though he was fit for service in class B-2. Being unfit for service in class A-l as an Engine Driver C he could not be continued in that post. An Engine Driver of a passenger train must have a good vision and if the Driver does not have a good vision he could not possibly be continued as an Engine Driver. He must, therefore, be accommodated in some other post in accordance with the certificate. The certificate had stated that he was fit for service in class B-2. A Pump Engine Driver comes under class B-2 and, therefore, he was offered that post which be accepted and he was given the maximum of that scale. All this was done in accordance with Rule 152 of the Code which is as follows:"A Railway servant who fails in vision test or otherwise becomes physically incapable of performing the duties of the post which he occupies but not incapable of performing other duties, should not be discharged forthwith but should be granted leave in accordance with Rule 2237-A-R. During the period of leave so granted, such a railway servant must be offered some alternative employment on reasonable emoluments having regard to his former emoluments. Further, the extraordinary leave portion of leave granted in accordance with Rule 2237-A-R should not be cut short purely on account of his refusing the first offer which is made to him but he must be discharged if he does not accept one or more offers during the period of his leave."4. This rule is an extremely reasonable rule. Normally an employee who is medically unfit for service would be invalidated or discharged. But the above rule provides that if an employee fails only in the vision test but otherwise is not incapable of performing other duties he should not be discharged but absorbed in a post where his services could be utilized. Having regard to the duties that he was performing so far in which some amount of skill had been acquired he was offered the post of the Pump Engine Driver for which he was declared medically fit. It is true that the scale of pay for this post is lower than the scale to which he had been entitled as an engine Driver C. But if he had not accepted the post the Railway authorities would have had no option but to discharge him. In these circumstances, it can be hardly contended that he was either punished or went with a stigma on his character. This was not a disciplinary measure. The appellant being found unfit for the job was given some other job for which he was fit. We do not see how Article 311 of the Constitution comes in there.
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0[ds]3. There is no substance in this appeal. It is not disputed that in the medical examination it was certified that he was unfit for service in classthough he was fit for service in classBeing unfit for service in classas an Engine Driver C he could not be continued in that post. An Engine Driver of a passenger train must have a good vision and if the Driver does not have a good vision he could not possibly be continued as an Engine Driver. He must, therefore, be accommodated in some other post in accordance with the certificate. The certificate had stated that he was fit for service in classA Pump Engine Driver comes under classand, therefore, he was offered that post which be accepted and he was given the maximum of thatThis rule is an extremely reasonable rule. Normally an employee who is medically unfit for service would be invalidated or discharged. But the above rule provides that if an employee fails only in the vision test but otherwise is not incapable of performing other duties he should not be discharged but absorbed in a post where his services could be utilized. Having regard to the duties that he was performing so far in which some amount of skill had been acquired he was offered the post of the Pump Engine Driver for which he was declared medically fit. It is true that the scale of pay for this post is lower than the scale to which he had been entitled as an engine Driver C. But if he had not accepted the post the Railway authorities would have had no option but to discharge him. In these circumstances, it can be hardly contended that he was either punished or went with a stigma on his character. This was not a disciplinary measure. The appellant being found unfit for the job was given some other job for which he was fit. We do not see how Article 311 of the Constitution comes in there.
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Palekar, J.1. This is an appeal by special leave from a judgment and order of the Patna High Court in Misc. Judicial Case No. 944 of 1962 dismissing the petition.2. The appellant had joined service in the old Bengal Assam Railway, now known as North East Frontier Railway as a substitute cleaner some time in 1940. In due course, in 1956 he was promoted to officiate as an Engine Driver C and worked in that capacity till December, 1961. He was then in the scale of Rs. 150/- to Rs. 240/- and was actually drawing the pay of Rs. 160/per month. Engine Drivers have to undergo periodical tests for their vision. On December 25, 1961 the appellant was examined by the District Medical Officer, Katihar who reported that the appellant was medically unfit for service in class A-1 i.e. for driving Railway Engines though he was fit for service in class B-2. The appellant appealed to the Chief Medical Officer who, however, confirmed, the report of the District Medical Officer. The Railway Authorities thereupon in accordance with Rule 152 of the Indian Railway Establishment Code, Volume 1, 1959 granted the appellant leave that was due to him and, in the meantime, offered to absorb him in a post for which he was fit namely as Pump Engine Driver. The scale of this post was Rs. 75/- to Rs. 110/- and the appellant was given the maximum of the scale namely Rs. 110/- per month The appellant accepted the post but without prejudice, and thereafter filed the petition on December 12, 1962 complaining that he had been reduced in rank by way of punishment without complying with the mandatory provisions of Article 311 of the Constitution. The petition was dismissed on October 12 1965 and it is from this Order that the present appeal is filed.3. There is no substance in this appeal. It is not disputed that in the medical examination it was certified that he was unfit for service in class A-1 though he was fit for service in class B-2. Being unfit for service in class A-l as an Engine Driver C he could not be continued in that post. An Engine Driver of a passenger train must have a good vision and if the Driver does not have a good vision he could not possibly be continued as an Engine Driver. He must, therefore, be accommodated in some other post in accordance with the certificate. The certificate had stated that he was fit for service in class B-2. A Pump Engine Driver comes under class B-2 and, therefore, he was offered that post which be accepted and he was given the maximum of that scale. All this was done in accordance with Rule 152 of the Code which is as follows:"A Railway servant who fails in vision test or otherwise becomes physically incapable of performing the duties of the post which he occupies but not incapable of performing other duties, should not be discharged forthwith but should be granted leave in accordance with Rule 2237-A-R. During the period of leave so granted, such a railway servant must be offered some alternative employment on reasonable emoluments having regard to his former emoluments. Further, the extraordinary leave portion of leave granted in accordance with Rule 2237-A-R should not be cut short purely on account of his refusing the first offer which is made to him but he must be discharged if he does not accept one or more offers during the period of his leave."4. This rule is an extremely reasonable rule. Normally an employee who is medically unfit for service would be invalidated or discharged. But the above rule provides that if an employee fails only in the vision test but otherwise is not incapable of performing other duties he should not be discharged but absorbed in a post where his services could be utilized. Having regard to the duties that he was performing so far in which some amount of skill had been acquired he was offered the post of the Pump Engine Driver for which he was declared medically fit. It is true that the scale of pay for this post is lower than the scale to which he had been entitled as an engine Driver C. But if he had not accepted the post the Railway authorities would have had no option but to discharge him. In these circumstances, it can be hardly contended that he was either punished or went with a stigma on his character. This was not a disciplinary measure. The appellant being found unfit for the job was given some other job for which he was fit. We do not see how Article 311 of the Constitution comes in there.
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3. There is no substance in this appeal. It is not disputed that in the medical examination it was certified that he was unfit for service in classthough he was fit for service in classBeing unfit for service in classas an Engine Driver C he could not be continued in that post. An Engine Driver of a passenger train must have a good vision and if the Driver does not have a good vision he could not possibly be continued as an Engine Driver. He must, therefore, be accommodated in some other post in accordance with the certificate. The certificate had stated that he was fit for service in classA Pump Engine Driver comes under classand, therefore, he was offered that post which be accepted and he was given the maximum of thatThis rule is an extremely reasonable rule. Normally an employee who is medically unfit for service would be invalidated or discharged. But the above rule provides that if an employee fails only in the vision test but otherwise is not incapable of performing other duties he should not be discharged but absorbed in a post where his services could be utilized. Having regard to the duties that he was performing so far in which some amount of skill had been acquired he was offered the post of the Pump Engine Driver for which he was declared medically fit. It is true that the scale of pay for this post is lower than the scale to which he had been entitled as an engine Driver C. But if he had not accepted the post the Railway authorities would have had no option but to discharge him. In these circumstances, it can be hardly contended that he was either punished or went with a stigma on his character. This was not a disciplinary measure. The appellant being found unfit for the job was given some other job for which he was fit. We do not see how Article 311 of the Constitution comes in there.
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Bhagat Ram Alias Bhagtu Ram Vs. Bhagat Ram & Others
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He was questioned as to the necessity of preparing this second manuscript. He replied that Bhagtu Ram, after perusing the first manuscript, said that the same was not legible, and therefore, he dictated the second manuscript Ex. P. W. 1/2, to the witness. Pressed further, Lal Chand had to admit that Bhagtu Ram was not very literate, although he could sign his name in Hindi. He however, added that Bhagtu Ram could read Hindi newspaper. He shifted this stand also and said that he had seen the appellant taking Hindi Newspaper and therefore, he presumed that Bhagtu Ram could read such newspapers. Inconsistently with his earlier position, the witness stated that after scribing the first manuscript, he read it over, without any difficulty, to Bhagtu Ram at the latters request. Questioned further, the witness tried to reconcile his contradictory versions by saying that Bhagtu Ram had simply gazed at the first manuscript for two minutes and then asked the witness to prepare the second manuscript.35. The appellants case which he later elaborated as R. W. 10 was that he had given several blank sheets of paper to P. W. 4 Suresh Chander. After the election, Lal Chand at the instance of Suresh Chander, prepared the manuscript Ex. P. W. 9/1, on one of those blank sheets and got the posters in question printed. Appellant got scent of it. He got that manuscript secretly removed from the Millan Press with the help of one Tayagi. After the mysterious disappearance of Ex. P. W. 9/1. Lal Chand, at the instance of Suresh Chander, prepared the second manuscript on a similar blank sheet of paper and got it produced by Sita Ram, Manager of the Press.36. The first part of the appellants case was put to Lal Chand without showing him Ex. P. W. 9/1. He denied that suggestion. He, however, perused Ex. P. W. 1/2 for a few second, and then categorically said that this was the second manuscript and not the first one. He significantly added that the figure "4000" below the manuscript must have been written by the press man. It was at this stage that Lal Chand was confronted with Ex. P. W. 9/1, which was then produced by the appellants Counsel. Lal Chand stated that this was the first manuscript prepared by him. He was asked to explain as to how and when it had been signed by the appellant. His discomfiture was manifest because according to his version the first manuscript had not been signed by the appellant. The witness further expressed ignorance as to who had written the figure "4000" on Ex. P. W. 9/1. Nor could Lal Chand give any explanation as to why on the first manuscript he had written the full description of the appellant below his signature. At this stage the second part of the defence case, regarding the disappearance of the first manuscript and the preparation of its substitute by the witness, was put to him. This suggestion was also denied.37. Sita Ram P. W. 1, the Manager of the Millan Press stated that he knew Bhagtu Ram (appellant) since 1966 as the latter used to come to his uncle. Witness had printed, apart from the poster in question, other material also in connection with the election of the appellant. Sita Ram produced the manuscript Ex. P. W. 1/2 and asserted that it had been given to him by the appellant on February 26, 1972 who was then accompanied by Lal Chand. Appellant asked the witness to print 4000 copies of the manuscript. Witness thereupon wrote the figure 4000 on the manuscript. Sita Ram further claimed that 4000 copies of the printed poster Ex. P. W. 1/1 were handed over to Lal Chand, after receiving the printing charges amounting to Rs. 64/ - on March 1, 1972.38. Sita Ram admitted in cross-examination that his press was installed only in 1970. The effect of this admission was two-fold: Firstly it falsified Lal Chands claim that the appellant had got posters printed from this Press in connection with the 1967 election. Secondly, it made Sita Rams claim about his acquaintance with Bhagtu Ram since 1966 , doubtful. In cross-examination, Sita Ram further revealed that he was not maintaining proper accounts and regular records. Acknowledgements of many customers had not been obtained. Sita Ram did nothing to comply with the requirements of Section 127-A of the Act with regard to the printing of the poster, Ex. P. W. 1/1. Sita Ram further disclosed that he was not paying any income-tax.39. The learned trial Judge has, in his judgment, brought out in bold relief the comics, antics, hesitations, prevarications, twists and turns of Lal Chand in the witness-box. He rightly appreciated this evidence in the setting that Lal Chand is one of the erstwhile strong supporters of the respondent and is acting like a jilted lady trying to teach the respondent a lesson". He suspected that Lal Chand might be playing "the villain-of the piece in the story of the poster". He found the story of the printing and publication of this poster told by Lal Chand and Sita Ram inconsistent with the surrounding circumstances and probabilities of the case. In that context, after stressing that Lal Chand, Suresh Chander were seasoned politicians, wholly in-charge of the election campaign of the appellant, a complete simpleton, the learned Judge observed:"Lal Chand P. W. the scribe of the poster was an experienced election worker who was keenly interested in the respondent during the election days. It is inconceivable that if the respondent in fact dictated such a defamatory poster to Lal Chand, he would not tell the respondent that the publication of a poster containing those allegations was likely to create trouble for him. Again Lal Chand must have been aware of the fact that if his hand in the publication of the poster was proved, he may render himself liable to prosecution for defamation or make him liable for damages for libel of the petitioner."40. Thu
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1[ds]23. It is not disputed that this statement bears the signature of the appellant. Bhagtu Ram explained that he was an illiterate man, and he had left all theincluding the preparation of return of election expenses entirely to Chander Singh, Advocate and Pt. Suresh Chander who prepared it and got it typed and then presented it to him for signature. Bhagtu Ram could not say whether his signatures were obtained by Chander Singh and Suresh Chander on two or three such returns. Witness expressed ignorance as to how many of those returns wereand how manyEven the return Ex. P. W. 6/1 was not prepared or typed in the presence of the witness. Witness did not care to check up before signing the returns of election expenses put up to him for signatures as to what was the total figure of expenses shown in each of them. On furtherBhagtu Ram stated that Chaudhary Inder Singh and Pt. Suresh Chander had obtained his signatures on two or four large blank sheets, besides hundreds ofHe did not ask them why his signatures were being obtained on blank sheets of paper. The entire record used to remain with Pt. Suresh Chander. Bhagtu Ram has said that he had such a confidence in Pt. Suresh Chander and Chander Singh that had entrusted "his life to them". He emphatically denied having ever hired or used jeeps Nos.98 in connection with his election.24. The learned trial Judge noted that the hiring charges stated in Ex. R. W. 10/1, did not "tally with the amount mentioned in the charge levelled by the petitioner". Again, later on, he observed : "The entry in the return Ex. R. W. 10/l, alone cannot be relied upon for proving the particular charge against respondent No. 1 as it is the admitted case of both sides that the amounts mentioned in the return were not correct". Nevertheless, the learned Judge held that "Ex. R. W. 10/1, can be utilized for the purpose of corroborating other evidence."25. In our opinion, the circumstances delineated by Bhagtu Ram coupled with the dubious manner in which Ex. R. W. 10/1 was smuggled into the case at a very late stage, were sufficient to condemn it as totally unworthy of reliance. It was of no use even for corroboration. Far from corroborating, it stood in sharp contradiction to the evidence given by P.Ws.10 and 11 on all the essential points in issue, namely, the amount of the hiring charges, the rate of hire and the period of hiring. Even as a previous statement, it could be used only to corroborate its author, and not P. Ws. 10 and 11. In any case, Ex. R. W. 10/1, does not lend any assurance to the oral evidence of P. Ws. 10 and 11 on material points.26. The second piece of evidence, which according to Shri Dikshit corroborates the evidence of P. Ws. 10 and 11, consists of two credit memos/entries, datedoks of M/s. Chiranji Lal Sardha Ram. The first, Ex. P. W. 4/46 evidences that petrol/oil worth Rs. 351.78 was drawn for vehicle No.by Risal Singh. The other, Ex. P. W. 4/47, shows that on the same datepetrol worth Rs. 30:46 was drawn by vehicle No. HRJ 698. The name of the person at whose instance this petrol was given, is not entered therein.27. In the first place, as held by the High Court, in the accounts of the said firm some interpolations had been made "to show that entries after January 9, 1972 in the Rokar relate to respondent No. 1" and that "this is a crude attempt at creating evidence against respondent No. 1". Secondly, Ex. P. W. 4/46 and Ex. P. W. 4/47 do not evidence that these vehicles (HRB 3638 and HRJ 698) were on hire with the appellant on that day. At the most they show the possible use of these vehicles on March 1, 1972 only in connection with the election. Thus, even if Ex. 4/46 and Ex. 4/47 were genuine, they would corroborate the oral testimony of P. Ws. 10 and 11 only to an insignificant extent. They furnish no corroboration of their evidence in material particulars, namely, the hiring of these jeeps, the rate of the hire and the period of the hire.28. In the light of the above discussion the conclusion is inescapable that the evidence of the drivers of the aforesaid jeeps had not been substantially corroborated by other unimpeachable evidence, oral or documentary. Bearing in mind the hostile atmosphere in which the case was conceived and the vindictive spirit in which it has been piloted by the erstwhile workers of the appellant, we think, the uncorroborated oral testimony furnished by Chander Singh and Hazoora Singh had failed to establish the allegations in the petition relating to items (i) and (ii). Accordingly, we reverse the findings of the. High Court regarding these items.Lal Chand P. W. 9 is the star witness of the petitioner with regard to the printing and publication of the above poster. He is the Sarpanch of Kamalpur, a village in Kalayat Assembly Constituency. He was a worker and Polling Agent of the appellant in the election. He stated that the manuscript Ex. P. W. 1/2 was written by him at the dictation of Bhagtu Ram (appellant) in his election office at Kalayat on February 26, 1972 at about 9 a. m. At about 11 a m., witness accompanied the appellant to a Press, having a name like "Millan" at Rampura. At the Press, Bhagtu Ram handed over the manuscript Ex. P . W. 1/2 to the Manager, and directed him to print 4000 copies thereof. The Manager asked Bhagtu Ram to sign the manuscript. Bhagtu Ram thereupon pointed out his signature on the manuscript. Bhagtu Ram wanted the posters to be printed on the same day. The Manager expressed his inability to print the posters before March 1,1972. Bhagtu Ram then told the Manager that the posters would be collected onThe printing charges were settled at Rs.The witness was thereafter sent by Bhagtu Ram with Rs. 100/to the Press for collecting the posters. Accordingly, on March 1, 1972, he collected the printed posters on payment of Rs.and wrote the acknowledgement Ex. P. W.on the carbon copy of the bill Ex. P. W. 1/6. On March 2, 1972, witness accompanied Bhagtu Ram in his jeep along with others, and went to villages, namely Simla, Bahr, Wazir Nagar, Kod and Kharl, where the posters were distributed mostly by the other persons with them.34.Lal Chand stated that Bhagtu Ram had dictated one more manuscript apart from Ex. P. W. I/2. He was questioned as to the necessity of preparing this second manuscript. He replied that Bhagtu Ram, after perusing the first manuscript, said that the same was not legible, and therefore, he dictated the second manuscript Ex. P. W. 1/2, to the witness. Pressed further, Lal Chand had to admit that Bhagtu Ram was not very literate, although he could sign his name in Hindi. He however, added that Bhagtu Ram could read Hindi newspaper. He shifted this stand also and said that he had seen the appellant taking Hindi Newspaper and therefore, he presumed that Bhagtu Ram could read such newspapers. Inconsistently with his earlier position, the witness stated that after scribing the first manuscript, he read it over, without any difficulty, to Bhagtu Ram at the latters request. Questioned further, the witness tried to reconcile his contradictory versions by saying that Bhagtu Ram had simply gazed at the first manuscript for two minutes and then asked the witness to prepare the second manuscript.35. The appellants case which he later elaborated as R. W. 10 was that he had given several blank sheets of paper to P. W. 4 Suresh Chander. After the election, Lal Chand at the instance of Suresh Chander, prepared the manuscript Ex. P. W. 9/1, on one of those blank sheets and got the posters in question printed. Appellant got scent of it. He got that manuscript secretly removed from the Millan Press with the help of one Tayagi. After the mysterious disappearance of Ex. P. W. 9/1. Lal Chand, at the instance of Suresh Chander, prepared the second manuscript on a similar blank sheet of paper and got it produced by Sita Ram, Manager of the Press.36. The first part of the appellants case was put to Lal Chand without showing him Ex. P. W. 9/1. He denied that suggestion. He, however, perused Ex. P. W. 1/2 for a few second, and then categorically said that this was the second manuscript and not the first one. He significantly added that the figure "4000" below the manuscript must have been written by the press man. It was at this stage that Lal Chand was confronted with Ex. P. W. 9/1, which was then produced by the appellants Counsel. Lal Chand stated that this was the first manuscript prepared by him. He was asked to explain as to how and when it had been signed by the appellant. His discomfiture was manifest because according to his version the first manuscript had not been signed by the appellant. The witness further expressed ignorance as to who had written the figure "4000" on Ex. P. W. 9/1. Nor could Lal Chand give any explanation as to why on the first manuscript he had written the full description of the appellant below his signature. At this stage the second part of the defence case, regarding the disappearance of the first manuscript and the preparation of its substitute by the witness, was put to him. This suggestion was also denied.37. Sita Ram P. W. 1, the Manager of the Millan Press stated that he knew Bhagtu Ram (appellant) since 1966 as the latter used to come to his uncle. Witness had printed, apart from the poster in question, other material also in connection with the election of the appellant. Sita Ram produced the manuscript Ex. P. W. 1/2 and asserted that it had been given to him by the appellant on February 26, 1972 who was then accompanied by Lal Chand. Appellant asked the witness to print 4000 copies of the manuscript. Witness thereupon wrote the figure 4000 on the manuscript. Sita Ram further claimed that 4000 copies of the printed poster Ex. P. W. 1/1 were handed over to Lal Chand, after receiving the printing charges amounting to Rs. 64/on March 1, 1972.38. Sita Ram admitted inthat his press was installed only in 1970. The effect of this admission wasFirstly it falsified Lal Chands claim that the appellant had got posters printed from this Press in connection with the 1967 election. Secondly, it made Sita Rams claim about his acquaintance with Bhagtu Ram since 1966 , doubtful. InSita Ram further revealed that he was not maintaining proper accounts and regular records. Acknowledgements of many customers had not been obtained. Sita Ram did nothing to comply with the requirements of SectionThe learned trial Judge has, in his judgment, brought out in bold relief the comics, antics, hesitations, prevarications, twists and turns of Lal Chand in theHe rightly appreciated this evidence in the setting that Lal Chand is one of the erstwhile strong supporters of the respondent and is acting like a jilted lady trying to teach the respondent a lesson". He suspected that Lal Chand might be playing "thethe piece in the story of the poster". He found the story of the printing and publication of this poster told by Lal Chand and Sita Ram inconsistent with the surrounding circumstances and probabilities of the case. In that context, after stressing that Lal Chand, Suresh Chander were seasoned politicians, whollyof the election campaign of the appellant, a complete simpleton, the learned JudgeChand P. W. the scribe of the poster was an experienced election worker who was keenly interested in the respondent during the election days. It is inconceivable that if the respondent in fact dictated such a defamatory poster to Lal Chand, he would not tell the respondent that the publication of a poster containing those allegations was likely to create trouble for him. Again Lal Chand must have been aware of the fact that if his hand in the publication of the poster was proved, he may render himself liable to prosecution for defamation or make him liable for damages for libel of the petitioner.Thus after a careful and close scrutiny of the statements of P. Ws. Lal Chand and Sita Ram, the Judge did not find them worthy of credit. As against them, he preferred to believe the evidence of R. W. 1 Shamsher Singh, Advocate, that no poster like the one in question was distributed in the Constituency at any time before the election. He further found that there was a reasonable possibility of the defence suggestion being true. He concludedpossibility of the poster in dispute having been got printed by some friend or associate of the petitioner after the election cannot be ruled out. Nor can the possibility of both the manuscripts having been prepared onbearing the signatures of the respondent which were in the hands of his earlier workers (who have now turned his enemies) can be excluded.
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### 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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He was questioned as to the necessity of preparing this second manuscript. He replied that Bhagtu Ram, after perusing the first manuscript, said that the same was not legible, and therefore, he dictated the second manuscript Ex. P. W. 1/2, to the witness. Pressed further, Lal Chand had to admit that Bhagtu Ram was not very literate, although he could sign his name in Hindi. He however, added that Bhagtu Ram could read Hindi newspaper. He shifted this stand also and said that he had seen the appellant taking Hindi Newspaper and therefore, he presumed that Bhagtu Ram could read such newspapers. Inconsistently with his earlier position, the witness stated that after scribing the first manuscript, he read it over, without any difficulty, to Bhagtu Ram at the latters request. Questioned further, the witness tried to reconcile his contradictory versions by saying that Bhagtu Ram had simply gazed at the first manuscript for two minutes and then asked the witness to prepare the second manuscript.35. The appellants case which he later elaborated as R. W. 10 was that he had given several blank sheets of paper to P. W. 4 Suresh Chander. After the election, Lal Chand at the instance of Suresh Chander, prepared the manuscript Ex. P. W. 9/1, on one of those blank sheets and got the posters in question printed. Appellant got scent of it. He got that manuscript secretly removed from the Millan Press with the help of one Tayagi. After the mysterious disappearance of Ex. P. W. 9/1. Lal Chand, at the instance of Suresh Chander, prepared the second manuscript on a similar blank sheet of paper and got it produced by Sita Ram, Manager of the Press.36. The first part of the appellants case was put to Lal Chand without showing him Ex. P. W. 9/1. He denied that suggestion. He, however, perused Ex. P. W. 1/2 for a few second, and then categorically said that this was the second manuscript and not the first one. He significantly added that the figure "4000" below the manuscript must have been written by the press man. It was at this stage that Lal Chand was confronted with Ex. P. W. 9/1, which was then produced by the appellants Counsel. Lal Chand stated that this was the first manuscript prepared by him. He was asked to explain as to how and when it had been signed by the appellant. His discomfiture was manifest because according to his version the first manuscript had not been signed by the appellant. The witness further expressed ignorance as to who had written the figure "4000" on Ex. P. W. 9/1. Nor could Lal Chand give any explanation as to why on the first manuscript he had written the full description of the appellant below his signature. At this stage the second part of the defence case, regarding the disappearance of the first manuscript and the preparation of its substitute by the witness, was put to him. This suggestion was also denied.37. Sita Ram P. W. 1, the Manager of the Millan Press stated that he knew Bhagtu Ram (appellant) since 1966 as the latter used to come to his uncle. Witness had printed, apart from the poster in question, other material also in connection with the election of the appellant. Sita Ram produced the manuscript Ex. P. W. 1/2 and asserted that it had been given to him by the appellant on February 26, 1972 who was then accompanied by Lal Chand. Appellant asked the witness to print 4000 copies of the manuscript. Witness thereupon wrote the figure 4000 on the manuscript. Sita Ram further claimed that 4000 copies of the printed poster Ex. P. W. 1/1 were handed over to Lal Chand, after receiving the printing charges amounting to Rs. 64/ - on March 1, 1972.38. Sita Ram admitted in cross-examination that his press was installed only in 1970. The effect of this admission was two-fold: Firstly it falsified Lal Chands claim that the appellant had got posters printed from this Press in connection with the 1967 election. Secondly, it made Sita Rams claim about his acquaintance with Bhagtu Ram since 1966 , doubtful. In cross-examination, Sita Ram further revealed that he was not maintaining proper accounts and regular records. Acknowledgements of many customers had not been obtained. Sita Ram did nothing to comply with the requirements of Section 127-A of the Act with regard to the printing of the poster, Ex. P. W. 1/1. Sita Ram further disclosed that he was not paying any income-tax.39. The learned trial Judge has, in his judgment, brought out in bold relief the comics, antics, hesitations, prevarications, twists and turns of Lal Chand in the witness-box. He rightly appreciated this evidence in the setting that Lal Chand is one of the erstwhile strong supporters of the respondent and is acting like a jilted lady trying to teach the respondent a lesson". He suspected that Lal Chand might be playing "the villain-of the piece in the story of the poster". He found the story of the printing and publication of this poster told by Lal Chand and Sita Ram inconsistent with the surrounding circumstances and probabilities of the case. In that context, after stressing that Lal Chand, Suresh Chander were seasoned politicians, wholly in-charge of the election campaign of the appellant, a complete simpleton, the learned Judge observed:"Lal Chand P. W. the scribe of the poster was an experienced election worker who was keenly interested in the respondent during the election days. It is inconceivable that if the respondent in fact dictated such a defamatory poster to Lal Chand, he would not tell the respondent that the publication of a poster containing those allegations was likely to create trouble for him. Again Lal Chand must have been aware of the fact that if his hand in the publication of the poster was proved, he may render himself liable to prosecution for defamation or make him liable for damages for libel of the petitioner."40. Thu
### Response:
1
### Explanation:
therefore, he presumed that Bhagtu Ram could read such newspapers. Inconsistently with his earlier position, the witness stated that after scribing the first manuscript, he read it over, without any difficulty, to Bhagtu Ram at the latters request. Questioned further, the witness tried to reconcile his contradictory versions by saying that Bhagtu Ram had simply gazed at the first manuscript for two minutes and then asked the witness to prepare the second manuscript.35. The appellants case which he later elaborated as R. W. 10 was that he had given several blank sheets of paper to P. W. 4 Suresh Chander. After the election, Lal Chand at the instance of Suresh Chander, prepared the manuscript Ex. P. W. 9/1, on one of those blank sheets and got the posters in question printed. Appellant got scent of it. He got that manuscript secretly removed from the Millan Press with the help of one Tayagi. After the mysterious disappearance of Ex. P. W. 9/1. Lal Chand, at the instance of Suresh Chander, prepared the second manuscript on a similar blank sheet of paper and got it produced by Sita Ram, Manager of the Press.36. The first part of the appellants case was put to Lal Chand without showing him Ex. P. W. 9/1. He denied that suggestion. He, however, perused Ex. P. W. 1/2 for a few second, and then categorically said that this was the second manuscript and not the first one. He significantly added that the figure "4000" below the manuscript must have been written by the press man. It was at this stage that Lal Chand was confronted with Ex. P. W. 9/1, which was then produced by the appellants Counsel. Lal Chand stated that this was the first manuscript prepared by him. He was asked to explain as to how and when it had been signed by the appellant. His discomfiture was manifest because according to his version the first manuscript had not been signed by the appellant. The witness further expressed ignorance as to who had written the figure "4000" on Ex. P. W. 9/1. Nor could Lal Chand give any explanation as to why on the first manuscript he had written the full description of the appellant below his signature. At this stage the second part of the defence case, regarding the disappearance of the first manuscript and the preparation of its substitute by the witness, was put to him. This suggestion was also denied.37. Sita Ram P. W. 1, the Manager of the Millan Press stated that he knew Bhagtu Ram (appellant) since 1966 as the latter used to come to his uncle. Witness had printed, apart from the poster in question, other material also in connection with the election of the appellant. Sita Ram produced the manuscript Ex. P. W. 1/2 and asserted that it had been given to him by the appellant on February 26, 1972 who was then accompanied by Lal Chand. Appellant asked the witness to print 4000 copies of the manuscript. Witness thereupon wrote the figure 4000 on the manuscript. Sita Ram further claimed that 4000 copies of the printed poster Ex. P. W. 1/1 were handed over to Lal Chand, after receiving the printing charges amounting to Rs. 64/on March 1, 1972.38. Sita Ram admitted inthat his press was installed only in 1970. The effect of this admission wasFirstly it falsified Lal Chands claim that the appellant had got posters printed from this Press in connection with the 1967 election. Secondly, it made Sita Rams claim about his acquaintance with Bhagtu Ram since 1966 , doubtful. InSita Ram further revealed that he was not maintaining proper accounts and regular records. Acknowledgements of many customers had not been obtained. Sita Ram did nothing to comply with the requirements of SectionThe learned trial Judge has, in his judgment, brought out in bold relief the comics, antics, hesitations, prevarications, twists and turns of Lal Chand in theHe rightly appreciated this evidence in the setting that Lal Chand is one of the erstwhile strong supporters of the respondent and is acting like a jilted lady trying to teach the respondent a lesson". He suspected that Lal Chand might be playing "thethe piece in the story of the poster". He found the story of the printing and publication of this poster told by Lal Chand and Sita Ram inconsistent with the surrounding circumstances and probabilities of the case. In that context, after stressing that Lal Chand, Suresh Chander were seasoned politicians, whollyof the election campaign of the appellant, a complete simpleton, the learned JudgeChand P. W. the scribe of the poster was an experienced election worker who was keenly interested in the respondent during the election days. It is inconceivable that if the respondent in fact dictated such a defamatory poster to Lal Chand, he would not tell the respondent that the publication of a poster containing those allegations was likely to create trouble for him. Again Lal Chand must have been aware of the fact that if his hand in the publication of the poster was proved, he may render himself liable to prosecution for defamation or make him liable for damages for libel of the petitioner.Thus after a careful and close scrutiny of the statements of P. Ws. Lal Chand and Sita Ram, the Judge did not find them worthy of credit. As against them, he preferred to believe the evidence of R. W. 1 Shamsher Singh, Advocate, that no poster like the one in question was distributed in the Constituency at any time before the election. He further found that there was a reasonable possibility of the defence suggestion being true. He concludedpossibility of the poster in dispute having been got printed by some friend or associate of the petitioner after the election cannot be ruled out. Nor can the possibility of both the manuscripts having been prepared onbearing the signatures of the respondent which were in the hands of his earlier workers (who have now turned his enemies) can be excluded.
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Poona Electric Supply Company Limited, Poona Vs. S Industrial Tribunal (S. Taki Bilgrami)
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every year heretofore. The unions were demanding an enhanced rate in view of the financial prosperity of the company, Instead of three months bonus, they were now demanding six months bonus. There might have been some substance in the argument of Sri Ramaswami if the claim for interim relief had been made on the customary basis, that is to say, bonus payable at a uniform rate at certain festivals, as, for example, the Pooja or Diwali bonus. In such a case, the basic for the claim in the reference would have been inconsistent with the basis for the interim claim, because on the customary basis, the workers could never have asked for more than three months wage which they were receiving as bonus in past years.( 13 ) THE distinction between the various types of bonus has now been well-established. In New Maneck Chowk Spinning and Weaving Company, Ltd. v. Textile Labour Association [1961 - I l. L. J. 521 at 526] it has been pointed out that so far there are only four types of bonus which have been evolved under the industrial law as laid down by the Supreme Court. It is observed as follows :"firstly, there is what is called a production bonus or incentive wage [see Titaghar Paper Mills v. Their workmen (1959 - II L. L. J. 9); the second is bonus as an implied term of contract between the parties [see Ispahani, Ltd. v. Ispahani Employees Union (1959 - II L. L. J)]; the third is customary bonus in connexion with some festival [see Grahams Trading Company v. Their workman (1959 - II L. L. J. 393)]; and the fourth is profit-bonus which was evolved by the Labour appellate Tribunal in Millowners Association, Bombay v. Rashtriya Mill Mazdoor Sangh, bombay [1950 L. L. J. 1247], and which has been considered by this Court fully in two cases. "( 14 ) AT one stage there was some confusion about the "customary" bonus. That term was promiscuously used for what is now really customary bonus paid in connexion with a festival as also for what is paid as an implied term of contract of service. The difference between the two forms of bonus has been brought out in Grahams Trading Company v. Their workmen [1959 - II l. L. J. 393] (vide supra ). One of the four circumstances which went to show whether a bonus was a customary bonus or not was to see whether the payment has been made at a uniform rate throughout. In the case of bonus paid as a term of implied contract, the bonus is not uniform; it can be variable [see also Ispahani, Ltd. v. Ispahani Employees Union (1959 - II L. L. J. 4) (vide supra)]. Therefore, when a claim for bonus is made on the basis that it was an implied term of contract, it was always open for the respondent-unions to contend that though till now they were paid bonus equivalent to three months wages, they were entitled to be paid a higher bonus in view of the increased financial prosperity of the company. Sri Ramaswami wants to construe the demand as a demand based entirely on the Full Bench formula. We do not think that there is any justification for such a restricted construction upon the demand actually made and referred to above. Sri Ramaswami referred to a decision of the Supreme Court in Bridge and Roof Company (India), Ltd. v. Union of India [1962 - II L. L. J. 490] for supporting his contention that as soon as you demand bonus for a particular year, it must reference to the individual year, it must necessarily imply the application of the Full Bench formula. We do not think there is anything in this report to justify this conclusion. That case deals with the word "bonus" found in the definition of the expression basic wages" in S. 2 (b) (ii) of the Employees Provident Fund Act, 1952. We cannot read this decision as an authority for the proposition that when a demand is made by a party for bonus being paid for any given year, that is equivalent to demanding it on the basis of the Full Bench formula. In these circumstances, therefore, when on 6 February 1963 the respondents made a claim for an interim award of bonus for three months as a term of service contract, that cannot be regarded as in any way inconsistent with the demand made in the reference itself. The demand in the reference is reference as much to the full Bench formula as to the term of service contract. In the application dated 6 February 1963 respondent 2 union stated as follows :-" (2) That payment of three months bonus is a term of service contract of all the workmen. (3) That there is an implied contract of service that the workers are entitled to payment of three months bonus per year. (4) It is therefore prayed that three moths bonus should be awarded as interim bonus immediately. "( 15 ) WHAT follows is important, viz.-" (5) The union reserves its right to submit the bonus calculations and the justification of the same at a later date. "( 16 ) IN other words, the demand made in the reference is referable both to the terms of contract and the Full Bench formula. Since the company had paid bonus for a number of years prior to 1961-62, the respondent unions, apparently, made an application for the award of an interim bonus at least at that rate pending the adjudication with regard to the demand already made. In our view, the tribunal was perfectly justified in considering that though the claim for bonus was one, it was claimed on two different grounds, and it was open to the tribunal to consider both the grounds without feeling it necessary to exclude one by the other. In our opinion, there is no good reason for interfering with the order passed by the tribunal.
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0[ds]( 14 ) AT one stage there was some confusion about the "customary" bonus. That term was promiscuously used for what is now really customary bonus paid in connexion with a festival as also for what is paid as an implied term of contract of service. The difference between the two forms of bonus has been brought out in Grahams Trading Company v. Their workmen [1959II l. L. J. 393] (vide supra ). One of the four circumstances which went to show whether a bonus was a customary bonus or not was to see whether the payment has been made at a uniform rate throughout. In the case of bonus paid as a term of implied contract, the bonus is not uniform; it can be variable [see also Ispahani, Ltd. v. Ispahani Employees Union (1959II L. L. J. 4) (vide supra)]. Therefore, when a claim for bonus is made on the basis that it was an implied term of contract, it was always open for theto contend that though till now they were paid bonus equivalent to three months wages, they were entitled to be paid a higher bonus in view of the increased financial prosperity of the company. Sri Ramaswami wants to construe the demand as a demand based entirely on the Full Bench formula. We do not think that there is any justification for such a restricted construction upon the demand actually made and referred to above. Sri Ramaswami referred to a decision of the Supreme Court in Bridge and Roof Company (India), Ltd. v. Union of India [1962II L. L. J. 490] for supporting his contention that as soon as you demand bonus for a particular year, it must reference to the individual year, it must necessarily imply the application of the Full Bench formula. We do not think there is anything in this report to justify this conclusion. That case deals with the word "bonus" found in the definition of the expression basic wages" in S. 2 (b) (ii) of the Employees Provident Fund Act, 1952. We cannot read this decision as an authority for the proposition that when a demand is made by a party for bonus being paid for any given year, that is equivalent to demanding it on the basis of the Full Bench formula. In these circumstances, therefore, when on 6 February 1963 the respondents made a claim for an interim award of bonus for three months as a term of service contract, that cannot be regarded as in any way inconsistent with the demand made in the reference itself. The demand in the reference is reference as much to the full Bench formula as to the term of service contract. In the application dated 6 February 1963 respondent 2 union stated as follows(2) That payment of three months bonus is a term of service contract of all the workmen. (3) That there is an implied contract of service that the workers are entitled to payment of three months bonus per year. (4) It is therefore prayed that three moths bonus should be awarded as interim bonus immediately. "( 15 ) WHAT follows is important,(5) The union reserves its right to submit the bonus calculations and the justification of the same at a later date. "( 16 ) IN other words, the demand made in the reference is referable both to the terms of contract and the Full Bench formula. Since the company had paid bonus for a number of years prior tothe respondent unions, apparently, made an application for the award of an interim bonus at least at that rate pending the adjudication with regard to the demand already made. In our view, the tribunal was perfectly justified in considering that though the claim for bonus was one, it was claimed on two different grounds, and it was open to the tribunal to consider both the grounds without feeling it necessary to exclude one by the other. In our opinion, there is no good reason for interfering with the order passed by the tribunal.
| 0 | 2,982 | 760 |
### 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:
every year heretofore. The unions were demanding an enhanced rate in view of the financial prosperity of the company, Instead of three months bonus, they were now demanding six months bonus. There might have been some substance in the argument of Sri Ramaswami if the claim for interim relief had been made on the customary basis, that is to say, bonus payable at a uniform rate at certain festivals, as, for example, the Pooja or Diwali bonus. In such a case, the basic for the claim in the reference would have been inconsistent with the basis for the interim claim, because on the customary basis, the workers could never have asked for more than three months wage which they were receiving as bonus in past years.( 13 ) THE distinction between the various types of bonus has now been well-established. In New Maneck Chowk Spinning and Weaving Company, Ltd. v. Textile Labour Association [1961 - I l. L. J. 521 at 526] it has been pointed out that so far there are only four types of bonus which have been evolved under the industrial law as laid down by the Supreme Court. It is observed as follows :"firstly, there is what is called a production bonus or incentive wage [see Titaghar Paper Mills v. Their workmen (1959 - II L. L. J. 9); the second is bonus as an implied term of contract between the parties [see Ispahani, Ltd. v. Ispahani Employees Union (1959 - II L. L. J)]; the third is customary bonus in connexion with some festival [see Grahams Trading Company v. Their workman (1959 - II L. L. J. 393)]; and the fourth is profit-bonus which was evolved by the Labour appellate Tribunal in Millowners Association, Bombay v. Rashtriya Mill Mazdoor Sangh, bombay [1950 L. L. J. 1247], and which has been considered by this Court fully in two cases. "( 14 ) AT one stage there was some confusion about the "customary" bonus. That term was promiscuously used for what is now really customary bonus paid in connexion with a festival as also for what is paid as an implied term of contract of service. The difference between the two forms of bonus has been brought out in Grahams Trading Company v. Their workmen [1959 - II l. L. J. 393] (vide supra ). One of the four circumstances which went to show whether a bonus was a customary bonus or not was to see whether the payment has been made at a uniform rate throughout. In the case of bonus paid as a term of implied contract, the bonus is not uniform; it can be variable [see also Ispahani, Ltd. v. Ispahani Employees Union (1959 - II L. L. J. 4) (vide supra)]. Therefore, when a claim for bonus is made on the basis that it was an implied term of contract, it was always open for the respondent-unions to contend that though till now they were paid bonus equivalent to three months wages, they were entitled to be paid a higher bonus in view of the increased financial prosperity of the company. Sri Ramaswami wants to construe the demand as a demand based entirely on the Full Bench formula. We do not think that there is any justification for such a restricted construction upon the demand actually made and referred to above. Sri Ramaswami referred to a decision of the Supreme Court in Bridge and Roof Company (India), Ltd. v. Union of India [1962 - II L. L. J. 490] for supporting his contention that as soon as you demand bonus for a particular year, it must reference to the individual year, it must necessarily imply the application of the Full Bench formula. We do not think there is anything in this report to justify this conclusion. That case deals with the word "bonus" found in the definition of the expression basic wages" in S. 2 (b) (ii) of the Employees Provident Fund Act, 1952. We cannot read this decision as an authority for the proposition that when a demand is made by a party for bonus being paid for any given year, that is equivalent to demanding it on the basis of the Full Bench formula. In these circumstances, therefore, when on 6 February 1963 the respondents made a claim for an interim award of bonus for three months as a term of service contract, that cannot be regarded as in any way inconsistent with the demand made in the reference itself. The demand in the reference is reference as much to the full Bench formula as to the term of service contract. In the application dated 6 February 1963 respondent 2 union stated as follows :-" (2) That payment of three months bonus is a term of service contract of all the workmen. (3) That there is an implied contract of service that the workers are entitled to payment of three months bonus per year. (4) It is therefore prayed that three moths bonus should be awarded as interim bonus immediately. "( 15 ) WHAT follows is important, viz.-" (5) The union reserves its right to submit the bonus calculations and the justification of the same at a later date. "( 16 ) IN other words, the demand made in the reference is referable both to the terms of contract and the Full Bench formula. Since the company had paid bonus for a number of years prior to 1961-62, the respondent unions, apparently, made an application for the award of an interim bonus at least at that rate pending the adjudication with regard to the demand already made. In our view, the tribunal was perfectly justified in considering that though the claim for bonus was one, it was claimed on two different grounds, and it was open to the tribunal to consider both the grounds without feeling it necessary to exclude one by the other. In our opinion, there is no good reason for interfering with the order passed by the tribunal.
### Response:
0
### Explanation:
( 14 ) AT one stage there was some confusion about the "customary" bonus. That term was promiscuously used for what is now really customary bonus paid in connexion with a festival as also for what is paid as an implied term of contract of service. The difference between the two forms of bonus has been brought out in Grahams Trading Company v. Their workmen [1959II l. L. J. 393] (vide supra ). One of the four circumstances which went to show whether a bonus was a customary bonus or not was to see whether the payment has been made at a uniform rate throughout. In the case of bonus paid as a term of implied contract, the bonus is not uniform; it can be variable [see also Ispahani, Ltd. v. Ispahani Employees Union (1959II L. L. J. 4) (vide supra)]. Therefore, when a claim for bonus is made on the basis that it was an implied term of contract, it was always open for theto contend that though till now they were paid bonus equivalent to three months wages, they were entitled to be paid a higher bonus in view of the increased financial prosperity of the company. Sri Ramaswami wants to construe the demand as a demand based entirely on the Full Bench formula. We do not think that there is any justification for such a restricted construction upon the demand actually made and referred to above. Sri Ramaswami referred to a decision of the Supreme Court in Bridge and Roof Company (India), Ltd. v. Union of India [1962II L. L. J. 490] for supporting his contention that as soon as you demand bonus for a particular year, it must reference to the individual year, it must necessarily imply the application of the Full Bench formula. We do not think there is anything in this report to justify this conclusion. That case deals with the word "bonus" found in the definition of the expression basic wages" in S. 2 (b) (ii) of the Employees Provident Fund Act, 1952. We cannot read this decision as an authority for the proposition that when a demand is made by a party for bonus being paid for any given year, that is equivalent to demanding it on the basis of the Full Bench formula. In these circumstances, therefore, when on 6 February 1963 the respondents made a claim for an interim award of bonus for three months as a term of service contract, that cannot be regarded as in any way inconsistent with the demand made in the reference itself. The demand in the reference is reference as much to the full Bench formula as to the term of service contract. In the application dated 6 February 1963 respondent 2 union stated as follows(2) That payment of three months bonus is a term of service contract of all the workmen. (3) That there is an implied contract of service that the workers are entitled to payment of three months bonus per year. (4) It is therefore prayed that three moths bonus should be awarded as interim bonus immediately. "( 15 ) WHAT follows is important,(5) The union reserves its right to submit the bonus calculations and the justification of the same at a later date. "( 16 ) IN other words, the demand made in the reference is referable both to the terms of contract and the Full Bench formula. Since the company had paid bonus for a number of years prior tothe respondent unions, apparently, made an application for the award of an interim bonus at least at that rate pending the adjudication with regard to the demand already made. In our view, the tribunal was perfectly justified in considering that though the claim for bonus was one, it was claimed on two different grounds, and it was open to the tribunal to consider both the grounds without feeling it necessary to exclude one by the other. In our opinion, there is no good reason for interfering with the order passed by the tribunal.
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State Bank of India Vs. The Presiding Officer, Central Government Labour Court, Dhanbad and Anr
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by Government is not likely to affect a very large number of employees. On the merits, it seems to me that much can be said in favour of the view taken by the Labour Appellate Tribunal. If, in adjusting employees in the new wage structure, they are entitled to have their previous service taken into account, it is difficult to appreciate why a line should be drawn at the end of twelve years service and it should be held that an employee would not be entitled to claim any credit for any period of service beyond the said line. The modification made by Government confirms the provisions made by the Sastry Tribunal, and these provisions, as I have just indicated, allow certain increments in lieu of twelve years service. If fairplay and equity. Justify these provisions, it would seem to follow that the same considerations would justify the additional provisions that have been made by the Labour Appellate Tribunal decision. On the merits, therefore, I am inclined to agree with the view taken by the Labour Appellate Tribunal".10. It would appear clear from the above recommendation that What the Award meant in clause (2) when it referred to point- to-point adjustment is the placing. of each employee at the stage in the new scale to which he would have risen by reason of the length of service had he entered service in the new scale. What was sought to be ensured by clause (2) was that the adjusted basic pay in the new scale shall not exceed the point-to-point adjustment or the maximum of the scale. If the meaning given to the phrase point-to-point adjustment, is what is stated by the Commission in the report, then there, would be no impediment in giving effect to the directions in clause (4) (b). It would not therefore, be right to say that clause (4) (b) is to be ignored Or that the advantage ends only with that given in clause (4) (a).11. The next question is what is it that clause (5) (a) Provides for ? Does it provide for computing the length of service for the purposes of giving One increment for every three Years of notional service worked out on the basis of the service that would be required for a workman to Mach the basic pay which lie was drawing in the existing scale ? The contention of the 2nd respondent is sat taking the basic pay drawn by him as on 31st January 1950 to the nearest integer the length of service should be computed on the basis of the number of years which he would have to serve in the junior scale to draw that amount of basic pay. It appears to us on a careful examination of the terms of clause (5) (a) that the directions in this clause are inapplicable to him. Clause (5) (a) provides for only the, cases of those who start on a higher initial basic pay by getting additional increments or are, given advance increments in any scale whether junior or senior. In such contingencies how the length of service for the purposes of clause (4) (b) is to be computed was provided for in clause (5) (b). The directions given in that clause are that the length of service in the scale in which he is and in which he got an increment or increments either at the initial start or by special promotion should be that which he would have taken to reach the basic pay which he would draw on 31st January 1950 with the initial start. The condition precedent to the applicability of the directions in this clause is the receipt of increments or increment by way of special promotion. An increment is in the same scale while a promotion is from one scale to a higher scale. A promotion from a lower grade to a higher grade though both the grades may be in the same cadre is not an increment or increments by way of special promotion. The use of the word special would itself show that what is contemplated is advance increments in the same grade. What is sought to be taken into account by the Award is the actual service of the workman or where he has been given increments in the same scale he is sought to be compensated by giving him a corresponding advantage in the new scale. This is sought to be effected by taking into account the increment or increments earned in the cadre in computing the length of service under clause (4) (b). As the 2nd respondent did not get any increment or increments in the existing scale which was Grade I either at the initial start or by way of special promotion, the actual service in the cadre has to be computed for the purposes of clause (4) (b). The words same cadre in that clause as explained earlier would refer to both Grade IT and Grade 1. The actual service in both the grades will alone be considered for giving him an increment for every three years of service which in his case works out to one increment in respect of his 3 years. service: from 13 -1-47 to 31-1-50. Even if the initial. increment of Rs. 4/- in Grade II which was given to him for being proficient in the working of a machine is taken into account under clause: (5) (b) that would add one more year to the three years of actual service rendered .by him but that does, not give him any further advantage. He will, only be entitled to one increment under clause (4) (b). In the result we. hold that the 2nd respondent has to be fitted in the new scale on a basic pay of Rs. 148/- and on that basis the emoluments to which he would be entitled will have to be worked out. We accordingly direct the Labour Court to give the necessary direction in this regard.12.
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1[ds]The contention of the 2nd respondent is sat taking the basic pay drawn by him as on 31st January 1950 to the nearest integer the length of service should be computed on the basis of the number of years which he would have to serve in the junior scale to draw that amount of basic pay. It appears to us on a careful examination of the terms of clause (5) (a) that the directions in this clause are inapplicable to him. Clause (5) (a) provides for only the, cases of those who start on a higher initial basic pay by getting additional increments or are, given advance increments in any scale whether junior or senior. In such contingencies how the length of service for the purposes of clause (4) (b) is to be computed was provided for in clause (5) (b). The directions given in that clause are that the length of service in the scale in which he is and in which he got an increment or increments either at the initial start or by special promotion should be that which he would have taken to reach the basic pay which he would draw on 31st January 1950 with the initial start. The condition precedent to the applicability of the directions in this clause is the receipt of increments or increment by way of special promotion. An increment is in the same scale while a promotion is from one scale to a higher scale. A promotion from a lower grade to a higher grade though both the grades may be in the same cadre is not an increment or increments by way of special promotion. The use of the word special would itself show that what is contemplated is advance increments in the same grade. What is sought to be taken into account by the Award is the actual service of the workman or where he has been given increments in the same scale he is sought to be compensated by giving him a corresponding advantage in the new scale. This is sought to be effected by taking into account the increment or increments earned in the cadre in computing the length of service under clause (4) (b). As the 2nd respondent did not get any increment or increments in the existing scale which was Grade I either at the initial start or by way of special promotion, the actual service in the cadre has to be computed for the purposes of clause (4) (b). The words same cadre in that clause as explained earlier would refer to both Grade IT and Grade 1. The actual service in both the grades will alone be considered for giving him an increment for every three years of service which in his case works out to one increment in respect of his 3 years. service: from 13 -1-47 to 31-1-50. Even if the initial. increment of Rs. 4/- in Grade II which was given to him for being proficient in the working of a machine is taken into account under clause: (5) (b) that would add one more year to the three years of actual service rendered .by him but that does, not give him any further advantage. He will, only be entitled to one increment under clause (4) (b). In the result we. hold that the 2nd respondent has to be fitted in the new scale on a basic pay of Rs. 148/- and on that basis the emoluments to which he would be entitled will have to be worked out. We accordingly direct the Labour Court to give the necessary direction in this regard.
| 1 | 5,947 | 670 |
### 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:
by Government is not likely to affect a very large number of employees. On the merits, it seems to me that much can be said in favour of the view taken by the Labour Appellate Tribunal. If, in adjusting employees in the new wage structure, they are entitled to have their previous service taken into account, it is difficult to appreciate why a line should be drawn at the end of twelve years service and it should be held that an employee would not be entitled to claim any credit for any period of service beyond the said line. The modification made by Government confirms the provisions made by the Sastry Tribunal, and these provisions, as I have just indicated, allow certain increments in lieu of twelve years service. If fairplay and equity. Justify these provisions, it would seem to follow that the same considerations would justify the additional provisions that have been made by the Labour Appellate Tribunal decision. On the merits, therefore, I am inclined to agree with the view taken by the Labour Appellate Tribunal".10. It would appear clear from the above recommendation that What the Award meant in clause (2) when it referred to point- to-point adjustment is the placing. of each employee at the stage in the new scale to which he would have risen by reason of the length of service had he entered service in the new scale. What was sought to be ensured by clause (2) was that the adjusted basic pay in the new scale shall not exceed the point-to-point adjustment or the maximum of the scale. If the meaning given to the phrase point-to-point adjustment, is what is stated by the Commission in the report, then there, would be no impediment in giving effect to the directions in clause (4) (b). It would not therefore, be right to say that clause (4) (b) is to be ignored Or that the advantage ends only with that given in clause (4) (a).11. The next question is what is it that clause (5) (a) Provides for ? Does it provide for computing the length of service for the purposes of giving One increment for every three Years of notional service worked out on the basis of the service that would be required for a workman to Mach the basic pay which lie was drawing in the existing scale ? The contention of the 2nd respondent is sat taking the basic pay drawn by him as on 31st January 1950 to the nearest integer the length of service should be computed on the basis of the number of years which he would have to serve in the junior scale to draw that amount of basic pay. It appears to us on a careful examination of the terms of clause (5) (a) that the directions in this clause are inapplicable to him. Clause (5) (a) provides for only the, cases of those who start on a higher initial basic pay by getting additional increments or are, given advance increments in any scale whether junior or senior. In such contingencies how the length of service for the purposes of clause (4) (b) is to be computed was provided for in clause (5) (b). The directions given in that clause are that the length of service in the scale in which he is and in which he got an increment or increments either at the initial start or by special promotion should be that which he would have taken to reach the basic pay which he would draw on 31st January 1950 with the initial start. The condition precedent to the applicability of the directions in this clause is the receipt of increments or increment by way of special promotion. An increment is in the same scale while a promotion is from one scale to a higher scale. A promotion from a lower grade to a higher grade though both the grades may be in the same cadre is not an increment or increments by way of special promotion. The use of the word special would itself show that what is contemplated is advance increments in the same grade. What is sought to be taken into account by the Award is the actual service of the workman or where he has been given increments in the same scale he is sought to be compensated by giving him a corresponding advantage in the new scale. This is sought to be effected by taking into account the increment or increments earned in the cadre in computing the length of service under clause (4) (b). As the 2nd respondent did not get any increment or increments in the existing scale which was Grade I either at the initial start or by way of special promotion, the actual service in the cadre has to be computed for the purposes of clause (4) (b). The words same cadre in that clause as explained earlier would refer to both Grade IT and Grade 1. The actual service in both the grades will alone be considered for giving him an increment for every three years of service which in his case works out to one increment in respect of his 3 years. service: from 13 -1-47 to 31-1-50. Even if the initial. increment of Rs. 4/- in Grade II which was given to him for being proficient in the working of a machine is taken into account under clause: (5) (b) that would add one more year to the three years of actual service rendered .by him but that does, not give him any further advantage. He will, only be entitled to one increment under clause (4) (b). In the result we. hold that the 2nd respondent has to be fitted in the new scale on a basic pay of Rs. 148/- and on that basis the emoluments to which he would be entitled will have to be worked out. We accordingly direct the Labour Court to give the necessary direction in this regard.12.
### Response:
1
### Explanation:
The contention of the 2nd respondent is sat taking the basic pay drawn by him as on 31st January 1950 to the nearest integer the length of service should be computed on the basis of the number of years which he would have to serve in the junior scale to draw that amount of basic pay. It appears to us on a careful examination of the terms of clause (5) (a) that the directions in this clause are inapplicable to him. Clause (5) (a) provides for only the, cases of those who start on a higher initial basic pay by getting additional increments or are, given advance increments in any scale whether junior or senior. In such contingencies how the length of service for the purposes of clause (4) (b) is to be computed was provided for in clause (5) (b). The directions given in that clause are that the length of service in the scale in which he is and in which he got an increment or increments either at the initial start or by special promotion should be that which he would have taken to reach the basic pay which he would draw on 31st January 1950 with the initial start. The condition precedent to the applicability of the directions in this clause is the receipt of increments or increment by way of special promotion. An increment is in the same scale while a promotion is from one scale to a higher scale. A promotion from a lower grade to a higher grade though both the grades may be in the same cadre is not an increment or increments by way of special promotion. The use of the word special would itself show that what is contemplated is advance increments in the same grade. What is sought to be taken into account by the Award is the actual service of the workman or where he has been given increments in the same scale he is sought to be compensated by giving him a corresponding advantage in the new scale. This is sought to be effected by taking into account the increment or increments earned in the cadre in computing the length of service under clause (4) (b). As the 2nd respondent did not get any increment or increments in the existing scale which was Grade I either at the initial start or by way of special promotion, the actual service in the cadre has to be computed for the purposes of clause (4) (b). The words same cadre in that clause as explained earlier would refer to both Grade IT and Grade 1. The actual service in both the grades will alone be considered for giving him an increment for every three years of service which in his case works out to one increment in respect of his 3 years. service: from 13 -1-47 to 31-1-50. Even if the initial. increment of Rs. 4/- in Grade II which was given to him for being proficient in the working of a machine is taken into account under clause: (5) (b) that would add one more year to the three years of actual service rendered .by him but that does, not give him any further advantage. He will, only be entitled to one increment under clause (4) (b). In the result we. hold that the 2nd respondent has to be fitted in the new scale on a basic pay of Rs. 148/- and on that basis the emoluments to which he would be entitled will have to be worked out. We accordingly direct the Labour Court to give the necessary direction in this regard.
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Regional Provident Fund Commissioner Vs. Bhavani
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which was upheld up to the National Commission to direct the appellant herein to correct its records relating to the date of birth of the respondent, was erroneous and could not be sustained.15. In this regard, various decisions of this Court were referred to by Dr. Padia in support of his contention that contract of personal service or a service rendered free of charge would not attract the provisions of the Consumer Protection Act, 1986. Dr. Padia urged that the services rendered by the appellant to the respondent amounted to personal service which was of a free nature and would not, therefore, attract the provisions of the Consumer Protection Act on both counts. According to Dr. Padia, the respondent could at best have asked for pensionary benefits under the 1971 Employees Family Pension Scheme which had been replaced by the Employees Pension Scheme, 1995.16. Dr. Padia lastly urged that the District Forum had no jurisdiction under the Consumer Protection Act to direct alteration of the date of birth of a member which was recorded in the records of the appellant, and, that too, without holding any inquiry in that regard. 17. On behalf of the respondents, Mr. Noor Mohammed, learned advocate for the respondent in Special Leave Petition No.8661 of 2004, submitted that in a similar case involving the same set of facts, being Special Leave Petition No.9667 of 2005, this Court by order dated 26.3.2007 had dismissed the special leave petition. He, therefore, submitted that the arguments advanced by Dr. Padia were of no consequence in view of the order passed in Special Leave Petition No.9667 of 2005 wherein one K. Sarojini was the complainant before the District Forum.18. Mr. V. Prabhakar disputed Dr. Padias contentions and submitted that the entries relating to the date of birth of the respondent in the records of the company and not that recorded in the records of the appellant were relevant for the purpose of determining the date of superannuation of the employee concerned. It was submitted that stress had been erroneously laid on the alleged entry in the records of the appellant to wrongfully deny the benefits of the 1995 Employees Pension Scheme to the respondent. It was also submitted that various records had been produced on behalf of the respondent, including documentary evidence from the company, in order to establish her claim that her date of birth had been entered in her service records with the company as 31.12.1935. 19. We have carefully considered the submissions made on behalf of the respective parties and the relevant documents which had been produced before the District Forum and we are satisfied that the dates of birth of the respondents as recorded in their service records with the company are the correct dates of birth of the employees and not the dates of birth as entered in the records of the appellant. The reasoning given by the District Forum in accepting the entries in the companys record while rejecting those in the records of the appellant/Regional P.F. Commissioner are based on sound logic and the materials on record. For instance, there are certificates issued by the company to indicate that the respondent in C.A. No.6447/2001 had continued to work in the company till her date of superannuation i.e. 31.12.1995 and there was no denial on the part of the appellant that the respondent continued to contribute to the fund till the year 1995. No explanation is forthcoming as to why and how such contributions were received, even though according to the records of the appellant the respondent had retired on 31.12.1992, so as to make her ineligible for the 1995 Employees Pension Scheme which came into operation on and from 1st April, 1993.20. Dr. Padias submissions regarding the non-applicability of the Consumer Protection Act to the case of the respondent must also be rejected on account of the fact that the Regional Provident Fund Commissioner, who is the person responsible for the working of the 1995 Pension Scheme, must be held to be a service giver within the meaning of Section 2(1)(o) of the Consumer Protection Act. Nor is this a case of rendering of free service or rendering of service under a contract of personal service so as to bring the relationship between the appellant and respondent within the concept of master and servant. In our view, the respondent comes squarely within the definition of consumer within the meaning of Section 2(1)(d)(ii), inasmuch as, by becoming a member of the Employees Family Pension Scheme, 1971, and contributing to the same, she was availing of the services rendered by the appellant for implementation of the Scheme. The same is the case in the other appeals as well. 21. In fact, the same proposition has been explained in Regional Provident Fund Commissioner vs. Shiv Kumar Joshi [2000 (1) SCC 98 ], wherein in relation to the operation of the Consumer Protection Act to the Employees Provident Fund Schemes it was held as follows: "A peru`ot a service under the Act. Both the State as well as the National Commission have dealt with this aspect in detail and rightly come to the conclusion that the Act was applicable in the case of the Scheme on the ground that its member was a consumer under Section 2(1)(d) and the Scheme was a service under Section 2(1)(o)." 22. Several other earlier decisions were also referred to, where a similar view has been expressed. 23. We are not also able to appreciate Dr. Padias submission that the cases of the respondents should not be considered as they had applied at the fag end of their careers for correction of their dates of birth in the appellants records, which practice had been strongly discouraged by this Court. The aforesaid principle cannot apply to the case of the respondents as their dates of birth had been correctly recorded in the records of the company, including the respondents service records, on the basis whereof they had retired from the companys services.
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0[ds]19. We have carefully considered the submissions made on behalf of the respective parties and the relevant documents which had been produced before the District Forum and we are satisfied that the dates of birth of the respondents as recorded in their service records with the company are the correct dates of birth of the employees and not the dates of birth as entered in the records of the appellant. The reasoning given by the District Forum in accepting the entries in the companys record while rejecting those in the records of the appellant/Regional P.F. Commissioner are based on sound logic and the materials on record. For instance, there are certificates issued by the company to indicate that the respondent in C.A. No.6447/2001 had continued to work in the company till her date of superannuation i.e. 31.12.1995 and there was no denial on the part of the appellant that the respondent continued to contribute to the fund till the year 1995. No explanation is forthcoming as to why and how such contributions were received, even though according to the records of the appellant the respondent had retired on 31.12.1992, so as to make her ineligible for the 1995 Employees Pension Scheme which came into operation on and from 1st April, 1993.20. Dr. Padias submissions regarding the non-applicability of the Consumer Protection Act to the case of the respondent must also be rejected on account of the fact that the Regional Provident Fund Commissioner, who is the person responsible for the working of the 1995 Pension Scheme, must be held to be a service giver within the meaning of Section 2(1)(o) of the Consumer Protection Act. Nor is this a case of rendering of free service or rendering of service under a contract of personal service so as to bring the relationship between the appellant and respondent within the concept of master and servant. In our view, the respondent comes squarely within the definition of consumer within the meaning of Section 2(1)(d)(ii), inasmuch as, by becoming a member of the Employees Family Pension Scheme, 1971, and contributing to the same, she was availing of the services rendered by the appellant for implementation of the Scheme. The same is the case in the other appeals as well.We are not also able to appreciate Dr. Padias submission that the cases of the respondents should not be considered as they had applied at the fag end of their careers for correction of their dates of birth in the appellants records, which practice had been strongly discouraged by this Court. The aforesaid principle cannot apply to the case of the respondents as their dates of birth had been correctly recorded in the records of the company, including the respondents service records, on the basis whereof they had retired from the companys services.
| 0 | 2,600 | 515 |
### 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:
which was upheld up to the National Commission to direct the appellant herein to correct its records relating to the date of birth of the respondent, was erroneous and could not be sustained.15. In this regard, various decisions of this Court were referred to by Dr. Padia in support of his contention that contract of personal service or a service rendered free of charge would not attract the provisions of the Consumer Protection Act, 1986. Dr. Padia urged that the services rendered by the appellant to the respondent amounted to personal service which was of a free nature and would not, therefore, attract the provisions of the Consumer Protection Act on both counts. According to Dr. Padia, the respondent could at best have asked for pensionary benefits under the 1971 Employees Family Pension Scheme which had been replaced by the Employees Pension Scheme, 1995.16. Dr. Padia lastly urged that the District Forum had no jurisdiction under the Consumer Protection Act to direct alteration of the date of birth of a member which was recorded in the records of the appellant, and, that too, without holding any inquiry in that regard. 17. On behalf of the respondents, Mr. Noor Mohammed, learned advocate for the respondent in Special Leave Petition No.8661 of 2004, submitted that in a similar case involving the same set of facts, being Special Leave Petition No.9667 of 2005, this Court by order dated 26.3.2007 had dismissed the special leave petition. He, therefore, submitted that the arguments advanced by Dr. Padia were of no consequence in view of the order passed in Special Leave Petition No.9667 of 2005 wherein one K. Sarojini was the complainant before the District Forum.18. Mr. V. Prabhakar disputed Dr. Padias contentions and submitted that the entries relating to the date of birth of the respondent in the records of the company and not that recorded in the records of the appellant were relevant for the purpose of determining the date of superannuation of the employee concerned. It was submitted that stress had been erroneously laid on the alleged entry in the records of the appellant to wrongfully deny the benefits of the 1995 Employees Pension Scheme to the respondent. It was also submitted that various records had been produced on behalf of the respondent, including documentary evidence from the company, in order to establish her claim that her date of birth had been entered in her service records with the company as 31.12.1935. 19. We have carefully considered the submissions made on behalf of the respective parties and the relevant documents which had been produced before the District Forum and we are satisfied that the dates of birth of the respondents as recorded in their service records with the company are the correct dates of birth of the employees and not the dates of birth as entered in the records of the appellant. The reasoning given by the District Forum in accepting the entries in the companys record while rejecting those in the records of the appellant/Regional P.F. Commissioner are based on sound logic and the materials on record. For instance, there are certificates issued by the company to indicate that the respondent in C.A. No.6447/2001 had continued to work in the company till her date of superannuation i.e. 31.12.1995 and there was no denial on the part of the appellant that the respondent continued to contribute to the fund till the year 1995. No explanation is forthcoming as to why and how such contributions were received, even though according to the records of the appellant the respondent had retired on 31.12.1992, so as to make her ineligible for the 1995 Employees Pension Scheme which came into operation on and from 1st April, 1993.20. Dr. Padias submissions regarding the non-applicability of the Consumer Protection Act to the case of the respondent must also be rejected on account of the fact that the Regional Provident Fund Commissioner, who is the person responsible for the working of the 1995 Pension Scheme, must be held to be a service giver within the meaning of Section 2(1)(o) of the Consumer Protection Act. Nor is this a case of rendering of free service or rendering of service under a contract of personal service so as to bring the relationship between the appellant and respondent within the concept of master and servant. In our view, the respondent comes squarely within the definition of consumer within the meaning of Section 2(1)(d)(ii), inasmuch as, by becoming a member of the Employees Family Pension Scheme, 1971, and contributing to the same, she was availing of the services rendered by the appellant for implementation of the Scheme. The same is the case in the other appeals as well. 21. In fact, the same proposition has been explained in Regional Provident Fund Commissioner vs. Shiv Kumar Joshi [2000 (1) SCC 98 ], wherein in relation to the operation of the Consumer Protection Act to the Employees Provident Fund Schemes it was held as follows: "A peru`ot a service under the Act. Both the State as well as the National Commission have dealt with this aspect in detail and rightly come to the conclusion that the Act was applicable in the case of the Scheme on the ground that its member was a consumer under Section 2(1)(d) and the Scheme was a service under Section 2(1)(o)." 22. Several other earlier decisions were also referred to, where a similar view has been expressed. 23. We are not also able to appreciate Dr. Padias submission that the cases of the respondents should not be considered as they had applied at the fag end of their careers for correction of their dates of birth in the appellants records, which practice had been strongly discouraged by this Court. The aforesaid principle cannot apply to the case of the respondents as their dates of birth had been correctly recorded in the records of the company, including the respondents service records, on the basis whereof they had retired from the companys services.
### Response:
0
### Explanation:
19. We have carefully considered the submissions made on behalf of the respective parties and the relevant documents which had been produced before the District Forum and we are satisfied that the dates of birth of the respondents as recorded in their service records with the company are the correct dates of birth of the employees and not the dates of birth as entered in the records of the appellant. The reasoning given by the District Forum in accepting the entries in the companys record while rejecting those in the records of the appellant/Regional P.F. Commissioner are based on sound logic and the materials on record. For instance, there are certificates issued by the company to indicate that the respondent in C.A. No.6447/2001 had continued to work in the company till her date of superannuation i.e. 31.12.1995 and there was no denial on the part of the appellant that the respondent continued to contribute to the fund till the year 1995. No explanation is forthcoming as to why and how such contributions were received, even though according to the records of the appellant the respondent had retired on 31.12.1992, so as to make her ineligible for the 1995 Employees Pension Scheme which came into operation on and from 1st April, 1993.20. Dr. Padias submissions regarding the non-applicability of the Consumer Protection Act to the case of the respondent must also be rejected on account of the fact that the Regional Provident Fund Commissioner, who is the person responsible for the working of the 1995 Pension Scheme, must be held to be a service giver within the meaning of Section 2(1)(o) of the Consumer Protection Act. Nor is this a case of rendering of free service or rendering of service under a contract of personal service so as to bring the relationship between the appellant and respondent within the concept of master and servant. In our view, the respondent comes squarely within the definition of consumer within the meaning of Section 2(1)(d)(ii), inasmuch as, by becoming a member of the Employees Family Pension Scheme, 1971, and contributing to the same, she was availing of the services rendered by the appellant for implementation of the Scheme. The same is the case in the other appeals as well.We are not also able to appreciate Dr. Padias submission that the cases of the respondents should not be considered as they had applied at the fag end of their careers for correction of their dates of birth in the appellants records, which practice had been strongly discouraged by this Court. The aforesaid principle cannot apply to the case of the respondents as their dates of birth had been correctly recorded in the records of the company, including the respondents service records, on the basis whereof they had retired from the companys services.
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